Attach B_SAMPLE ROW_AEContractTemplate_Approved_clean_260622.pdf

Right of Way A&E Contract (04/01/2025) Page 1 of 46

CONTRACT

OREGON DEPARTMENT OF TRANSPORTATION

A & E Related Services

CONTRACT NO.

PROJECT NAME:

DBE (Contract includes federal funds: Y N ) DBE Goal – 0% Certified Small Business Aspirational Target (for State-only funded and Contract will exceed $100,000, including as amended; see Exhibit K)

N/A

Expenditure Account (“EA”) #: ODOT Key #: Federal Aid #:

This Contract is between the State of Oregon, acting by and through its Department of Transportation, hereafter called “Agency” or “ODOT,” and ______ [OPTION 1: if Consultant is entering into this contract as an individual/sole proprietor, enter name and include DBA if applicable. OPTION 2 If Consultant is entering into this contract as a Corporation, LLC, or partnership, enter legal name as provided to IRS and include DBA if applicable.] a [Enter state of incorporation and “corporation” if it is a corporation or the state of organization and “LLC” or “Partnership”, whichever is applicable, if it is an LLC or partnership.

Delete Option 1] (“Consultant”). Agency and Consultant together are referred to as “Parties” and individually referred to as “Party.” Agency’s designated “Contract Administrator” and Consultant’s Key Personnel for this Contract are identified in Exhibit J – Contact Information and Key Persons.

For purposes of this Contract:

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) “Professional Services” means “personal services” as defined in ORS 279C.100 and include

Related Services, including the appraisal and other Services under this Contract;

e) “recommend”, “recommended” and “recommendation” of appraisals as they relate to Agency’s assessment of appraisals means Agency agrees with the conclusions of the appraisal and Agency thinks the appraisal can be reasonably used to assist with determining just compensation and appropriate offers to property owners;

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

g) “State” means State of Oregon.

1. Contract Effective Date and Term.

This Contract is effective on the date it has been signed by the Parties and all required State of Oregon approvals have been obtained. The project for which Agency requires Consultant’s Services is described in Exhibit SOW – Statement of Work (the “Services”). Consultant shall perform its obligations according to this Contract through final completion of the Services unless this Contract is terminated or suspended. Unless otherwise amended or terminated, this Contract shall expire [Enter Service End Date with enough time to cover the possibility of Consultant needing to provide services for

Right of Way A&E Contract (04/01/2025) Page 2 of 46 condemnation-related services] . The required schedule for performance under the Contract is specified in the Statement of Work.

2. Statement of Work.

Consultant shall perform all Services and deliver all deliverables as described in Exhibit SOW – Statement of Work. Consultant shall not provide any Services until this Contract has been signed by all Parties, all necessary State of Oregon approvals have been obtained, and Agency has issued a notice to proceed to Consultant.

3. Compensation.

The maximum amount payable to Consultant under this Contract, which includes the total fixed amount for appraisal or appraisal review fees , $ , the maximum not-to-exceed amount for condemnation-related contingency Services, $ , and the $ amount of any allowable and reimbursable expenses for condemnation-related contingency Services, is [Enter amount that is equal to the sum of Total Fixed Appraisal Fees in Schedule of Appraisals outlined in Exhibit SOW and, if included, the amount for condemnation-related contingency services, and, if included, the amount for fees and travel costs associated with the condemnation-related services]$ , as detailed further in Exhibit SOW – Statement of Work, and Exhibit B – Compensation. [If this contract was awarded as a Direct Appointment, include the following two sentences that are highlighted in blue. If not, DELETE] This Contract was awarded as a Direct Appointment pursuant to OAR 731-148-0200 (1). Amendments to increase the maximum amount payable are subject to limitations and additional requirements as provided in that rule. The payment methodology and basis for payment to Consultant is described in Exhibit B – Compensation. Fees and travel expenses for condemnation-related contingency Services, must be authorized separately by Agency

4. Contract Documents.

a. Exhibits Attached and Incorporated This Contract includes the following exhibits, each of which is attached and incorporated into this Contract as though fully set forth herein:

(i) Exhibit SOW – Statement of Work

(ii) Exhibit B – Compensation

(iii) Exhibit C – Insurance

(iv) Exhibit D – Title VI Non-Discrimination Provisions

(v) Exhibit E.1 – Disadvantaged Business Enterprise (DBE) Provisions, No-Goal [If the project by which Contract is being executed is programmed with no federal funds, label (v) as Reserved]

(vi) Exhibit F – Appraisal or Appraisal Review Specification Worksheet

(vii) Exhibit G – Consultant Evaluation

(viii) Exhibit H – Conflict of Interest Disclosure

(ix) Exhibit J – Contact Information and Key Persons

b. Exhibits Incorporated by Reference from Website(s).

This Contract includes the following exhibits, each of which, although not physically attached, is incorporated by this reference into this Contract with the same force and effect as though fully set forth herein:

(i) Exhibit I – Reserved

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(ii) Exhibit K – Certified Small Business Aspirational Target Provisions [If the project by which Contract is being executed is programmed with any portion as federal funds, label (ii) as Reserved].

The full text of the above referenced exhibits may be reviewed and downloaded on line at the following address: http://www.oregon.gov/ODOT/Business/Procurement/Pages/PSK.aspx

5. Order of Precedence.

Unless a different order is required by law, this Contract shall be interpreted in the following order of precedence:

1. This Contract (including all amendments, if any) less all attachments, exhibits and other material incorporated into this Contract by reference;

2. Exhibit SOW – Statement of Work

3. Exhibit B – Compensation

4. Exhibit F – Appraisal or Appraisal Review Specification Worksheet

5. Exhibit C – Insurance

6. Exhibit H – Conflict of Interest Guidelines and Disclosure Process

7. Exhibit D – Title VI Non-Discrimination Provisions

8. Exhibit G – Consultant Evaluation

9. Exhibit E.1 – Disadvantaged Business Enterprise (“DBE”) Provisions, No-Goal

10. Exhibit J – Contact Information and Key Persons

11. Exhibit K – Certified Small Business Aspirational Target Provisions

6. Independent Contractor; Conflict of Interest; Responsibility for Taxes and Withholding;

Consultant Oversight.

a. 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 the following link: https://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 ODOT 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. Consultant, by its signature on the Contract, certifies that: (i) Consultant and, to the best of its information, knowledge and belief, its Associates are in compliance with the ODOT Conflict of Interest Guidelines (as may be revised from time to time by Agency) available at:

https://www.oregon.gov/ODOT/Business/Procurement/Pages/PSK.aspx, and (ii) if submittal of a Conflict of Interest Disclosure Form is required, the information Consultant provided through the Conflict of Interest Disclosure Form is true, accurate and complete as of the Contract effective date or if not, Consultant has submitted to Agency a Conflict of Interest Disclosure Form in the form required by Agency that is updated, true, accurate and complete as of the Contract effective date. In addition, Consultant shall submit to Agency a true, accurate and complete Conflict of Interest Disclosure Form, in the form required by Agency, no later than 10 business days following the date Consultant becomes aware of any staffing, organizational or other material changes that result in nonconformance with disclosure requirements of the ODOT Conflict of Interest Guidelines.

http://www.oregon.gov/ODOT/Business/Procurement/Pages/PSK.aspx https://www.irs.gov/pub/irs-pdf/p1779.pdf https://www.oregon.gov/ODOT/Business/Procurement/Pages/PSK.aspx

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c. 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, 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 Contract, Consultant shall submit an updated W-9 form (https://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 Contract, 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 Contract, unless otherwise expressly agreed to in writing by the Parties. The Parties agree, however, that these Section 6.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 Contract.

7. 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 Contract, or in any manner assigning, selling or transferring any of its rights or interest under the Contract or delegate any of its duties or performance under the Contract. In addition to any other provisions Agency 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 10, 11, 12, 13, 14, 17, 24, and 29 of these Contract provisions and the limitations provided in Exhibit B – Compensation, in the performance of the subcontractor’s Services on the project that is the subject of the Contract, 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 Contract, including with respect to any Services, whether performed or to be performed by Consultant or a subcontractor.

b. The provisions of the Contract 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.

8. No Third Party Beneficiaries.

Agency and Consultant are the only Parties to the Contract and are the only Parties entitled to enforce its terms. Nothing in the 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 in the Contract and expressly described as intended beneficiaries of the terms of the Contract.

https://www.irs.gov/pub/irs-pdf/fw9.pdf

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9. Funds Available and Authorized; Payments.

Consultant shall not be compensated for Services performed under the Contract by any other agency or department of the State of Oregon. Agency reasonably believes that, as of the effective date of the Contract, it has sufficient funds available and authorized for expenditure to finance the costs of the Contract within Agency's appropriation or limitation. Consultant understands and agrees that Agency's payment of amounts under the Contract 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 Contract.

In the event Agency 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 Agency’s appropriation or limitation, Agency shall give prompt written notice to Consultant.

10. Representations and Warranties.

a. Consultant’s Representations and Warranties.

Consultant represents and warrants to Agency that (i) Consultant has the power and authority to enter into and perform the Contract, (ii) the Contract, when executed and delivered is a valid and binding obligation of Consultant, enforceable in accordance with its terms, (iii) the Services under the Contract will be performed in accordance with the professional standard of care set forth in Section 11 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 Contract; 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.

11. Professional Standard of Care; Responsibility of Consultant.

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 appraisals completed, and other Services and deliverables furnished by Consultant under the Contract. Consultant shall, without additional compensation, correct or revise any errors or deficiencies in its appraisals and other Services and deliverables.

(ii) Agency’s review, recommendation, approval or acceptance of, or payment for, the Services required under the Contract shall not be construed 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 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 Contract or negligent failure to perform any of the Services under the Contract.

(iii) The rights and remedies of Agency provided for under the Contract are in addition to any other rights and remedies provided by law.

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(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) RESERVED

12. 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 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 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 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 Contract 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 Contract, 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 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 12.c, 12.d, 12.e and 12.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

Right of Way A&E Contract (04/01/2025) Page 7 of 46 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 and the pre-existing elements of the Third Party 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.

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 12, 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 SOW – Statement of Work and Delivery Schedule, 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 13 below, pertaining to Confidentiality and Non-Disclosure.

13. 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 Contract, 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 Contract 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 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 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 this

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Section 13(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 shall 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 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.

14. INDEMNITY.

A. CLAIMS FOR OTHER THAN PROFESSIONAL LIABILITY. Consultant shall indemnify, defend, save, and hold harmless the State of Oregon, the Oregon Transportation Commission and its members, the Department of Transportation, 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, the Oregon Transportation Commission and its members, the Department of Transportation, 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 14.A or

14.B, Consultant expressly agrees to indemnify, defend, save and hold harmless the State of Oregon, the Oregon Transportation Commission and its members, the Department of Transportation and 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 14.C, based solely on the following:

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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 14 does not include indemnification by Consultant of the State of Oregon, the Oregon Transportation Commission and its members, the Department of Transportation and its officers agents and employees, for the acts or omissions of the State of Oregon, the Oregon Transportation Commission and its members, the Department of Transportation and its officers agents and employees, whether within the scope of the Contract or otherwise.

15. Insurance.

Consultant shall carry insurance as indicated on Exhibit C.

16. 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. Agency's Right to Terminate for Convenience. Agency may, at its sole discretion, terminate the Contract, 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 Contract, 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 Contract 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 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 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.

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(i) Consultant may terminate the Contract by giving written notice to Agency if Agency fails to pay Consultant pursuant to the terms of the Contract 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 Contract, for reasons other than nonpayment, if Agency commits any material breach or default of any covenant, warranty, obligation or agreement under the Contract, fails to perform under the Contract within the times specified, or so fails to perform as to endanger Consultant's performance under the Contract, 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 16(a), 16(b), 16(c)(i), 16(c)(ii) or 16(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 recommended by Agency (with recommendation 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 16(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 9, 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 16(c)(iii) or 16(c)(iv), 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 16(c)(iii) or 16(c)(iv), the rights and obligations of the Parties shall be the same as if the Contract was terminated pursuant to Section 16(b).

(iii) In the event Consultant is in default under Section 16(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 Contract, 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 Contract, Consultant shall immediately cease all activities under the Contract, unless Agency expressly directs otherwise in such notice of termination. Upon termination of the Contract, Consultant shall deliver to Agency all documents, information, works-in-progress and other property that are or would be deliverables had the Contract 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 Contract been completed, that are in Consultant’s possession or control and may be needed by Agency to complete the Services.

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17. Records Maintenance; Access.

Consultant, and its subconsultants, shall maintain all fiscal records relating to the Contract in accordance with generally accepted accounting principles. In addition, Consultant shall maintain all other records pertinent to the Contract and the project and shall do so 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 Contract 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 Contract, or until the conclusion of any audit, controversy or litigation arising out of or related to the Contract, whichever date is later.

18. Performance Evaluations.

Agency may conduct performance evaluation(s) on the selected Consultant(s) during the term of the Contract, 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 Contract.

19. 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 Contract, in effect at the time the Contract is executed and as may be amended, revised, enacted or adopted thereafter.

Changes in these legal requirements after the execution of the Contract 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 Contract 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 Contract. 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 Contract, 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 Contract.

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20. Permits and Licenses.

a. Permits and licenses to conduct business. Unless otherwise specified in Exhibit SOW –

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.

b. Reserved.

21. 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.

22. 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 Contract.

23. 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, 10, 11, 12, 13, 14, 16(e), 16(f), 17, 23, 24, 28 and 29 and all other rights and obligations which expressly or by their nature or context are intended to survive.

24. Time is of the Essence.

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

25. Notice.

Except as otherwise expressly provided in the Contract, 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 Contract, 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 Contract Administrator or Consultant’s representative, as applicable.

26. Severability.

The Parties agree that if any term or provision of the 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

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Contract 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 Contract.

27. 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.

28. Dispute Resolution Process.

In the event of a dispute between the Parties regarding any aspect of the Contract or performance under the Contract, the Parties agree to attempt in good faith to resolve any such dispute through direct communications and negotiations. In the event good faith efforts do not resolve the dispute, the Parties agree to make a good faith effort to determine if mediation might resolve 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 binding decision on the Parties, but will merely act to facilitate the process of the Parties’ attempt to resolve the dispute through mutual agreement.

29. Governing Law; Venue; Consent to Jurisdiction.

The Contract shall be governed by, and 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 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, as mandated by federal law, 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 Section be construed as a waiver by the State of Oregon of any form or 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

THE CONTRACT, HEREBY CONSENTS TO THE IN PERSONAM JURISDICTION OF SAID COURTS.

30. Amendments

a. Changes via Amendment. Agency may amend the Contract to the extent permitted by applicable statutes and administrative rules and as mutually agreed upon by Agency and Consultant. Agency may agree to appropriate increases in the maximum compensation payable under the Contract, should any Agency-approved increase occur in the scope, character, schedule or complexity of Services as outlined in the SOW. 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.

b. Changes via Electronic Amendment. The following amendments to this Contract, when such amendments do not include changes to scope of work or not-to-exceed amount of the Contract, may be accomplished by electronic amendment (sent via e-mail) that documents agreement by Consultant and Agency:

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(i) The addition of or change in Consultant’s subcontractors or Key Staff approved by Agency under the Contract;

(ii) Reserved;

(iii) Reserved;

(iv) Revisions to delivery schedule and Contract expiration date;

(v) Revisions to designated Contract Administrator or Agency’s Project Manager (APM).

Agency reserves the right to issue requirements for the written communications, including but not limited to specific language that must be included to document the agreement by Consultant and Agency.

31. False Claims.

a. Consultant understands and acknowledges it is subject to the Oregon False Claims Act (ORS

180.750 to 180.785http://uscode.house.gov/) and to any liabilities or penalties associated with the making of a false claim under that Act. By its execution of the Contract, Consultant certifies the truthfulness, completeness, and accuracy of any statement or claim it has made, it makes, it may make, or cause to be made that pertains to the Contract or the project for which the Services are being performed, including but not limited to Consultant’s statement of proposal and any invoices, reports, or other deliverables.

b. Consultant shall immediately disclose (in writing) to Agency whenever, in connection with the award, performance or closeout of the Contract, or any subcontract thereunder, Consultant has credible evidence that a principal, employee, agent, or subcontractor of Consultant has committed—

(i) A violation of the Oregon False Claims Act; or

(ii) A violation of State or Federal criminal or civil law involving fraud, conflict of interest, bribery, gratuity or similar misconduct.

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

32. Merger Clause; Waiver; Interpretation.

The Contract, including everything incorporated by reference, constitutes the entire agreement between the Parties on the subject matter hereof. There are no understandings, agreements, or representations, oral or written, not specified herein regarding the Contract. No waiver, consent, modification or change of terms of the Contract shall bind either Party, unless such waiver, consent, modification or change of terms is in writing and signed by the Parties, and all necessary State of Oregon governmental approvals have been obtained. Such a waiver, consent, modification or change, if made, shall be effective only in the specific instance and for the specific purpose given.