ATT A - Sample Contract vessel removal and disposal.doc

ADV-2123-xxx – Willamette River Boat Salvage/Disposal Project

Contract No. ADV-2123-xxx This Contract for Services (this “Contract”) is by and between the State of Oregon, acting through its Oregon State Marine Board, (“Agency)” and _____________________________ (“Contractor”). The “Effective Date” of this Contract is the later of (i) _________________or (ii) the date this Contract has been fully executed by each party and approved as required by applicable law. Unless extended or terminated earlier in accordance with its terms, this Contract terminates when Agency accepts Contractor's completed performance. The termination of this Contract will not extinguish or prejudice Agency’s right to enforce this Contract with respect to any default by Contractor that has not been cured.

The Agency's Contract Administrator for this Contract is:

Name: Dorothy Diehl

Phone: 503-856-2914 Address: 435 Commercial St. NE Ste 400 Salem, OR 97301 Email: dorothy.diehl@boat.oregon.gov The Contractor’s Point of Contact for this Contract is:

Name:

Phone:

Address:

Email:

1. Statement of Services

a. Required Services, Deliverables and Delivery Schedule.

The Contractor shall, upon effective date of contract, inform the Contract Administrator of the chosen date and time for project commencement. The date of project commencement shall fall on or between ____.

The Contractor shall complete the work prescribed in: (will reference attachment)

The removal will be completed by ____________ and the demolition and disposal are to be completed by ______________________, unless extended by OSMB in writing. Contractor will notify OSMB of project completion and provide photos and waste facility receipts to document completion. OSMB or the contracted law enforcement agency in the county where the vessel are located may perform a site inspection within 10 calendar days of notification to complete a visual reconnaissance that the vessel has been properly disposed. OSMB will use the visual inspection and documentation provided by Contractor to determine that the requirements of the Contract have been completed and that final payment can be made. Contractor’s failure to deliver the deliverables in accordance with the requirements of this Contract is a material breach of this Contract.

Contractor will provide all labor, equipment, safety equipment, training and transportation necessary to complete the work specified. Any suspension of work for more than 48 hours must be approved in writing by OSMB. Vessels will be removed from the water in a manner that reduces or minimizes impacts to the environment and recreational and commercial boating. Contractor will contain and remove all debris and materials associated with the vessels. It is the Contractor’s responsibility to comply with all state, federal and local laws, rules, guidelines and policies for removal of vessels that may contain pollutants or hazardous materials that can impact the environment.

2.

Consideration. The maximum, not-to-exceed compensation payable to Contractor under this Contract, which includes any allowable expenses, is $______________. Agency will not pay Contractor any amount in excess of the not-to-exceed compensation of this Contract, and will not pay for Services performed before the Effective Date or after the expiration or termination of this Contract. Contractor will impose no fees for Services paid for by this Contract other than fees set by the Agency, if any. Payments will be subject to the provisions of ORS 293.462.

If the scope of the Project or the Services are changed materially, Contractor shall request in writing an amendment to the Contract before additional Services are provided and before compensation is adjusted. All legally required approvals must be obtained for any Contract amendment before the amendment is effective and before Services may be performed or payment made under the amendment.

3.

Invoices. Contractor shall submit invoices to Agency’s Contract Administrator. Contractor may submit invoices after Contractor’s completed performance of each Service required by this Contract. The invoices must describe all Services performed with particularity, including the dates Contractor performed the Services for which it is requesting payment, and by whom the Services were performed and shall itemize and explain all expenses that this Contract requires Agency to pay and for which Contractor claims reimbursement.

4.

Subcontracts. The Contractor shall not subcontract for any of the Services required under this Contract unless they are identified and approved prior to contract execution. Subcontractors identified under this contract include:_______ 5.

Ownership of Work Product. All work product of the Contractor that results from this Contract (the “Work Product”) is the exclusive property of the Agency. The Agency and the Contractor agree that such Work Product be deemed “work made for hire” of which the Agency be deemed the author. If for any reason the Work Product is not deemed “work made for hire,” the Contractor hereby irrevocably assigns to the Agency all of its right, title, and interest in and to any and all of the Work Product, whether arising from copyright, patent, trademark, trade secret, or any other state or federal intellectual property law or doctrine. The Contractor shall execute such further documents and instruments as the Agency, or both, may reasonably request in order to fully vest such rights in the Agency. The Contractor forever waives any and all rights related to the Work Product, including without limitation, any and all rights arising under 17 USC § 106A or any other rights of identification or authorship or rights of approval, restriction or limitation on use or subsequent modifications. The Agency is a third party beneficiary under this Section 5.

6.

Termination.

a. The Agency’s Right to Terminate at its Discretion. At its sole discretion, the Agency may terminate this Contract in whole or in part, by written notice by the Agency to the Contractor.

b. The Agency's Right to Terminate For Cause. The Agency may terminate this Contract, in whole or in part, immediately upon notice to Contractor, or at such later date as the Agency may establish in such notice if: (i) the Contractor no longer holds any license or certificate that is required to perform Services; or (ii) the Contractor commits any material breach or default of any covenant, representation, warranty, obligation or agreement under this Contract, fails to perform the Services under this Contract within the time specified herein or any extension thereof, or so fails to pursue the Services as to endanger the Contractor's performance under this Contract in accordance with its terms, and such breach, default or failure is not cured within 10 business days after delivery of the Agency’s notice, or such longer period as the Agency may specify in such notice.

c. Remedies. In no event shall the Agency be liable to the Contractor for more than the maximum amount payable under this Contract. If termination is pursuant to subsections 6(b)(ii), the Agency shall have any remedy available to it in law or equity.

d. Contractor’s Right to Terminate. The Contractor may, at its sole discretion, terminate this Contract upon 30 days written notice to the Agency.

e. Mutual Consent. This Contract may be terminated at any time by mutual written consent of the parties.

7.

Amendments. Agency may amend this Contract to the extent permitted by applicable statutes and administrative rules. No amendment to this Contract is effective unless it is in writing signed by the parties, and has been approved as required by applicable law.

9.

Compliance with Applicable Laws and Standards.

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

b. Agency’s performance under the Contract is conditioned upon Contractor's compliance with the provisions of ORS 279B.220, 279B.225, 279B.230, 279B.235 and 279B.270 which are incorporated by reference herein. Contractor shall, to the maximum extent economically feasible in the performance of this Contract, use recycled paper (as defined in ORS 279A.010(1)(gg)), recycled PETE products (as defined in ORS 279A.010(1)(hh)), and other recycled products (as “recycled product” is defined in ORS 279A.010(1)(ii)).

10.

Independent Contractor; Responsibility for Taxes and Withholding.

a. Independent Contractor. Contractor shall perform all Services as an independent contractor. Agency reserves the right (i) to determine and modify the delivery schedule for the Services and (ii) to evaluate the quality of the Services; however, Agency may not and will not control the means or manner of Contractor's performance. Contractor is responsible for determining the appropriate means and manner of performing the Services.

b. No Conflicts. Contractor, by signature to this Contract, represents and warrants that Contractor’s performance of the Services under this Contract creates no potential or actual conflict of interest as defined by ORS 244; and no statutes, rules or regulations of any State of Oregon or federal agency for which Contractor currently performs work would prohibit Contractor from performing the Services under this Contract.

c. Affiliation. Contractor understands and agrees that it is not an "officer," "employee," or "agent" of the State of Oregon, as those terms are used in ORS 30.265 or otherwise.

d. Taxes and Benefits. Contractor is responsible for all federal or state taxes applicable to compensation or payments paid to Contractor under this Contract and, unless required by applicable law, Agency will not withhold from such compensation or payments any amount to cover Contractor's federal or state tax obligations. Contractor is not eligible for any social security, unemployment insurance or workers' compensation benefits from compensation or payments paid to Contractor under this Contract, except as a self‑employed individual.

11.

General Indemnity.

a. Claims. Contractor shall defend, save, hold harmless, and indemnify the State of Oregon and Agency and their officers, employees and agents from and against all third party claims, suits, actions, losses, damages, liabilities, costs (including attorneys’ fees) and expenses (collectively, "Claims") of any nature whatsoever resulting from, arising out of, or relating to the activities of Contractor or its officers, employees, subcontractors, or agents under this Contract, including but not limited to, unauthorized disclosure of Confidential Information, professional malfeasance, infringement of intellectual property rights, intentional, willful, or wanton wrongful acts, and acts outside the scope of Services set forth in this Contract.

b. Legal Counsel. If Contractor is required to defend the State of Oregon or Agency or their officers, employees or agents under Section 11.1, then Contractor shall select legal counsel reasonably acceptable to the Oregon Attorney General to act in the name of, or represent the interests of, the State of Oregon, Agency or their officers, employees and agents. Such legal counsel must accept appointment as a special assistant attorney general under ORS chapter 180 before such action or representation. Further, the State of Oregon, acting by and through its Department of Justice, may assume its own defense, including that of its officers, employees and agents, at any time when in the State of Oregon's sole discretion it determines that (i) proposed counsel is prohibited from the particular representation contemplated; (ii) counsel is not adequately defending the interests of the State of Oregon or its officers, employees and agents; (iii) important governmental interests are at stake; or (iv) the best interests of the State of Oregon are served thereby. Contractor's obligation to pay for all costs and expenses includes those incurred by the State of Oregon in assuming its own defense or that of its officers, employees, and agents under (i) and (ii) above.

c. Damages to State Property and Employees. Contractor is liable for all Claims for personal injury, including death, damage to real property and damage to tangible and intangible personal property of the State of Oregon or any of its employees, subcontractors or agents resulting from, arising out of, or relating to the intentional, reckless or negligent acts or omissions of Contractor or its officers, employees, subcontractors, or agents under this Contract.

d. CONTRACTOR IS NOT AUTHORIZED TO SETTLE OR COMPROMISE ANY CLAIM REFERENCED IN THIS SECTION WITHOUT THE EXPRESS WRITTEN CONSENT OF AGENCY.

12.

Insurance. Contractor shall obtain at Contractor’s expense the insurance specified in this section 12 prior to performing under this Contract and shall maintain it in full force and at its own expense throughout the duration of this Contract, as required by any extended reporting period or continuous claims made coverage requirements, and all warranty periods that apply. Contractor shall obtain the following insurance from insurance companies or entities that are authorized to transact the business of insurance and issue coverage in the State of Oregon and that are acceptable to Agency. Coverage shall be primary and non-contributory with any other insurance and self-insurance, with the exception of Professional Liability and Workers’ Compensation. Contractor shall pay for all deductibles, self-insured retention and self-insurance, if any.

a. Workers’ Compensation & Employers’ Liability

All employers, including Contractor, that employ subject workers, as defined in ORS 656.027, shall comply with ORS 656.017 and provide workers' compensation insurance coverage for those workers, unless they meet the requirement for an exemption under ORS 656.126(2). If Contractor is a subject employer, as defined in ORS 656.023, Contractor shall also obtain employers' liability insurance coverage with limits not less than $1,000,000 each accident.

If Contractor is an employer subject to any other state’s workers’ compensation law, Contractor shall provide workers’ compensation insurance coverage for its employees as required by applicable workers’ compensation laws including employers’ liability insurance coverage with limits not less than $1,000,000.

As applicable, Contractor shall obtain coverage to discharge all responsibilities and liabilities that arise out of or relate to the Jones Act with limits of no less than $5,000,000 and/or the Longshoremen’s and Harbor Workers’ Compensation Act.

Contractor shall require and ensure that each of its subcontractors complies with these requirements.

b. Commercial General Liability. Commercial General Liability Insurance covering bodily injury and property damage in a form and with coverage that are satisfactory to the State. This insurance shall include personal and advertising injury liability, products and completed operations, contractual liability coverage for the indemnity provided under this contract, and have no limitation of coverage to designated premises, project or operation. Coverage shall be written on an occurrence basis in an amount of not less than $2,000,000 per occurrence. Annual aggregate limit shall not be less than $4,000,000.

c. Marine General Liability (including stevedores/wharfingers Liability, if applicable). Contractor providing services on the water shall procure and maintain Marine General Liability (MGL) policy, or its equivalent, covering bodily injury, property damage, personal, advertising, contractual liability sufficiently broad to cover liabilities generated under the scope or use of watercraft in the performance of Work. Coverage to include marine pollution liability on a sudden and accidental buy-back basis, terminal operators and stevedores liability. Limit to be not less than $2,000,000 each occurrence, $2,000,000 completed operations, $4,000,000 general annual aggregate. Limits can be provided with a combination of primary and excess and/or bumbershoot.

d. Vessel Pollution Liability. Vessel pollution liability coverage for all watercraft in a minimum amount of $5,000,000. Terms, conditions and limits to be as per Club Rules, if entered in an IGA Club, or per the terms of the Water Quality Insurance Syndicate, or equivalent, as appropriate.

e. Automobile Liability. Automobile Liability Insurance covering Contractor’s business use including coverage for all owned, non-owned, or hired vehicles with a combined single limit of not less than $2,000,000 for bodily injury and property damage. This coverage may be written in combination with the Commercial General Liability Insurance (with separate limits for Commercial General Liability and Automobile Liability).

Automobile Liability Broadened Pollution Liability Coverage Endorsement: If the Contractor is transporting any type of hazardous materials under the contract, then endorsements CA 99 48 or equivalent and MSC-90 (if the Contractor is a regulated motor carrier) are required on the Automobile Liability insurance coverage.

f. Pollution Liability. Pollution Liability Insurance covering Contractor’s or appropriate subcontractor’s liability for bodily injury, property damage and environmental damage resulting from sudden accidental and gradual pollution and related cleanup costs incurred by Contractor, all arising out of the Goods delivered or Services (including transportation risk) performed under this Contract is required. Combined single limit per occurrence shall not be less than $5,000,000. Annual aggregate limit shall not be less than $10,000,000.

An endorsement to the Commercial General Liability or Automobile Liability policy, covering Contractor’s or subcontractor’ liability for bodily injury, property damage and environmental damage resulting from sudden accidental and gradual pollution and related clean-up cost incurred by the Contractor that arise from the Goods delivered or Services (including transportation risk) performed by Contractor under this Contract is also acceptable.

g. Excess/Umbrella/Bumbershoot Insurance. A combination of primary and excess/umbrella insurance may be used to meet the required limits of insurance.

h. Additional Insured. All liability insurance, except for Workers’ Compensation, Professional Liability, and Network Security and Privacy Liability (if applicable), required under this Contract must include an additional insured endorsement specifying the State of Oregon, its officers, employees and agents as Additional Insureds, including additional insured status with respect to liability arising out of ongoing operations and completed operations, but only with respect to Contractor's activities to be performed under this Contract. Coverage shall be primary and non-contributory with any other insurance and self-insurance. The Additional Insured endorsement with respect to liability arising out of your ongoing operations must be on ISO Form CG 20 10 07 04 or equivalent and the Additional Insured endorsement with respect to completed operations must be on ISO form CG 20 37 07 04 or equivalent.

i. Waiver of Subrogation. Contractor shall waive rights of subrogation which Contractor or any insurer of Contractor may acquire against the Agency or State of Oregon by virtue of the payment of any loss. Contractor will obtain any endorsement that may be necessary to affect this waiver of subrogation, but this provision applies regardless of whether or not the Agency has received a waiver of subrogation endorsement from the Contractor or the Contractor’s insurer(s).

j. Continuous Claims Made Coverage. If any of the required liability insurance is on a claims made basis and does not include an extended reporting period of at least 24 months, then Contractor shall maintain continuous claims made liability coverage, provided the effective date of the continuous claims made coverage is on or before the effective date of the Contract, for a minimum of 24 months following the later of:

(i) Contractor ’s completion and Agency’s acceptance of all Services required under the Contract, or

(ii) Agency or Contractor termination of this Contract, or

(iii) The expiration of all warranty periods provided under this Contract.

k. Certificate(s) and Proof of Insurance. Contractor shall provide to Agency Certificate(s) of Insurance for all required insurance before delivering any Goods and performing any Services required under this Contract. The Certificate(s) shall list the State of Oregon, its officers, employees and agents as a Certificate holder and as an endorsed Additional Insured. The Certificate(s) shall also include all required endorsements or copies of the applicable policy language effecting coverage required by this Contract. If excess/umbrella insurance is used to meet the minimum insurance requirement, the Certificate of Insurance must include a list of all policies that fall under the excess/umbrella insurance. As proof of insurance Agency has the right to request copies of insurance policies and endorsements relating to the insurance requirements in this Contract.

l. Notice of Change or Cancellation. The Contractor or its insurer must provide at least 30 days’ written notice to Agency before cancellation of, material change to, potential exhaustion of aggregate limits of, or non-renewal of the required insurance coverage(s).

m. Insurance Requirement Review. Contractor agrees to periodic review of insurance requirements by Agency under this Contract and to provide updated requirements as mutually agreed upon by Contractor and Agency.

n. State Acceptance. All insurance providers are subject to Agency acceptance. If requested by Agency, Contractor shall provide complete copies of insurance policies, endorsements, self-insurance documents and related insurance documents to Agency’s representatives responsible for verification of the insurance coverages required under this Section 12.

13.

Governing Law; Venue and Jurisdiction.

a. Governing Law. This Contract is governed by and construed in accordance with the laws of the State of Oregon without regard to principles of conflicts of law.

b. Venue and Jurisdiction. Any claim, action, suit or proceeding between Agency (or any other agency or department of the State of Oregon) and Contractor that arises from or relates to this Contract must be brought and conducted solely and exclusively within the Circuit Court of Marion County for the State of Oregon. CONTRACTOR, BY EXECUTION OF THIS CONTRACT, HEREBY CONSENTS TO THE IN PERSONAM JURISDICTION OF SAID COURTS. In no event may this section be construed as (i) a waiver by the State of Oregon of any form of defense or immunity, whether it is sovereign immunity, governmental immunity, immunity based on the Eleventh Amendment to the Constitution of the United States or otherwise, from any claim, action, suit or proceeding, or (ii) consent by the State of Oregon to the jurisdiction of any court.

14. No Third Party Beneficiaries. The Agency and the Contractor are the only parties to this Contract and are the only parties entitled to enforce its terms. Nothing in this Contract 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 herein and expressly described as intended beneficiaries of the terms of this Contract.

15. Merger. This Contract constitutes the entire agreement between the parties, and there are no understandings, agreements, or representations, oral or written, not specified herein regarding this Contract.

16. Certifications and Signature of Contractor’s Authorized Representative.

The undersigned certifies under penalty of perjury individually and on behalf of Contractor that:

c. Authorized Representative. The undersigned is a duly authorized representative of Contractor, authorized by Contractor to: act on behalf of Contractor; make all representations, attestations, and certifications contained in this Contract ; and execute this Contract on behalf of Contractor;

d. Tax Laws. Contractor is, to the best of the undersigned’s knowledge, not in violation of any Oregon Tax Laws;

e. Nondiscrimination. To the best of the undersigned’s knowledge, Contractor has not discriminated against and will not discriminate against minority, women or emerging small business enterprises certified under ORS 200.055 in obtaining any required subcontracts; and

f. Office of Foreign Assets Control. Contractor and Contractor’s employees and agents are not included on the list titled “Specially Designated Nationals and Blocked Persons” maintained by the Office of Foreign Assets Control of the United States Department of the Treasury and currently found at https://www.treasury.gov/ofac/downloads/sdnlist.pdf.

SIGNATURE OF CONTRACTOR.

Contractor (print name):

Authorized Signature: _______________________________________

Title: _____________________________________________________

Date: ___________________________

SIGNATURE OF STATE’S AUTHORIZED REPRESENTATIVE.

State of Oregon acting by and through its Oregon State Marine Board Authorized Signature: _______________________________________

By (print name):

Date: _____________________________

Attachments:

Attachment A: Location and Vessel Descriptions

Attachment B: Contractor’s original quote

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