Attach D - Sample Price Agreement final 03.14.22.pdf

RFP 8598 CREATIVE SERVICES

OREGONBUYS BID NO. S-63400-00001332

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RFP ATTACHMENT D

SAMPLE PRICE AGREEMENT

STATE OF OREGON

OREGON PARKS AND RECREATION DEPARTMENT

Price Agreement #8598## Creative Services

This price agreement (“Agreement”) is between the State of Oregon, acting by and through the Oregon Parks and Recreation Department (“OPRD”), and [selected contractor] (“Contractor”).

RECITALS

OPRD issued Request for Proposals 8598 (the “RFP”) seeking proposals for creative services for the Communications Division of OPRD.

Contractor submitted its Proposal on [date] (the “Proposal”). Following OPRD’s evaluation of all proposals submitted, Contractor’s Proposal was one of several selected for award.

OPRD and Contractor desire to enter this Agreement to establish the terms and conditions for future contracts for Services.

Therefore, OPRD and Contractor agree as follows:

1. AGREEMENT EFFECTIVE DATE AND DURATION

This Agreement is effective on the date it is signed by OPRD and Contractor (“Effective Date”). Unless terminated or extended, this Agreement expires two (2) years from the Effective Date [or as otherwise negotiated with selected contractor]. Expiration shall not extinguish or prejudice OPRD’s right to enforce this Agreement with respect to any breach of a Contractor warranty or any default or defect in Contractor performance that has not been cured. The duration of this Agreement may be extended from time to time as agreed to by the parties, for an anticipated total term of six (6) years.

2. PURPOSE OF AGREEMENT AND NONBINDING NATURE

The purpose of the Agreement is to establish the terms and conditions applicable to, and the general form of ordering instrument to be used for, contracts for Services entered into between OPRD and Contractor according to section 6 below. This Agreement, by itself, is not a binding contract, and OPRD makes no promise or representation that OPRD will request any Services from Contractor.

3. NON-EXCLUSIVE AGREEMENT

This is a non-exclusive Agreement. This Agreement is not a guarantee that any specific level of Services is or will be required under this Agreement, nor does this Agreement constitute a promise that OPRD will enter into one or more Contracts with Contractor. Notwithstanding this Agreement, OPRD reserves the right to contract for Services through any selection procedure authorized by law, or to perform the Services itself.

4. AGREEMENT DOCUMENTS

This Agreement consists of the following documents, which are interpreted in the following order of precedence: (1) the Agreement less Exhibits 1 through 3; (2) Exhibit 1, Contract Terms; (3) Exhibit 2, Work Order Contract Form and (4) Exhibit 3, Services and Pricing.

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5. GENERAL DESCRIPTION OF SERVICES

This Agreement is for the acquisition of creative services to assist OPRD in developing creative strategies, brand management, and execution of marketing campaigns to support OPRD’s activities and mission (“Services”), which are further described in Exhibit 3, Services and Pricing.

6. CONTRACTING PROCESS AND BINDING EFFECT

6.1 Work Order Contracts. During the term of the Agreement, Contractor agrees to provide the Services in accordance with the terms and conditions of the Agreement and individual Contracts. Contractor and OPRD will enter into Contracts within one or both of the following two categories as determined by

OPRD.

6.1.1 Fixed Price. Contractor and OPRD will enter into fixed price Contracts under which OPRD will pay Contractor an agreed-upon fixed amount for Contractor’s completion and OPRD’s acceptance of defined tasks and deliverables and with deliverables due according to an agreed upon delivery schedule.

6.1.2 Hourly. Contractor and OPRD will enter into hourly-based Contracts under which OPRD will pay Contractor on a time and materials basis at the Hourly Rate set forth in Exhibit 3, subject to agreed-upon, not-to-exceed amounts.

6.1.3 Licensed Content. If Contractor will license Work Product or Deliverables from third parties, or secure rights to use any Work Product or Deliverables, then Contractor may charge OPRD the actual costs of such license or rights, provided that (i) Contractor may pass through any license or rights fees to OPRD at actual costs and without markup or commission, and (ii) the specific costs for such licenses or rights must be set forth in the applicable Contract.

Each Contract must be substantially in the form of Exhibit 2, and must specify the particular Services to be performed, deliverables to be provided, the required due date(s), and negotiated fixed prices or not-to-exceed amounts for the tasks and deliverables that Contractor will complete and deliver to OPRD.

6.2 Binding Effect. Each Contract executed according to this Section 6 (each, a “Contract”) creates a separate contract between OPRD and Contractor that is enforceable according to its terms and independent of all other Contracts.

6.3 Selection of Contractor. OPRD will select the contractor who is the best fit for each Contract and whose selection is the most advantageous for OPRD, as determined by OPRD in its sole discretion, based on any combination of the following factors: the availability of the contractor to provide the Goods and Services within the required deadline(s); the applicability of the contractor’s resources and expertise related to the specific nature of the work to be performed under the Contract; the contractor’s response to the RFP;

the course of the contractor’s performance under the Price Agreement, and references for recent work performed by the contractor on other contracts. OPRD has sole discretion to select the appropriate contractor based on any combination of these factors. To be considered for a Contract, Contractor must respond to OPRD’s opportunity notice within the timeline specified in OPRD’s written opportunity notice.

7. CONTRACT NEGOTIATION

Prior to execution of a Contract OPRD and Contractor may negotiate the fixed prices for Services for fixed price contracts or applicable not-to-exceed amounts for Services for hourly based contracts, based upon the rate(s) specified in this Agreement. Contractor’s pricing under any resulting Contract shall not exceed the pricing specified in Exhibit 3, Services and Pricing, of this Agreement.

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8. PRICE CHANGES

Following the initial 2-year term, OPRD and Contractor may negotiate price changes to the rate(s) specified in Exhibit 3, Services and Pricing, but no more often than once in any 24-month period. Revised pricing is not effective until agreed to by OPRD and documented by amendment to this Agreement.

9. PAYMENT

OPRD will pay Contractor only for Services performed and deliverables accepted according to the applicable Contract.

10. INSURANCE

Contractor shall obtain and maintain the required insurance coverage throughout the term of this Agreement and all Contracts. The types and amounts of required insurance are specified in Exhibit 1, Work Order Contract Terms, Section 10, Insurance. Contractor shall obtain and maintain all required insurance in a form and with a surety satisfactory to OPRD.

11. TERMINATION

A. Parties’ Right to Terminate for Mutual Consent. This Agreement may be terminated at any time by mutual written consent of OPRD and Contractor.

B. OPRD’s Right to Terminate for Convenience. OPRD may, at its sole discretion, terminate this Agreement, in whole or in part, upon 30 Calendar Days written notice to Contractor.

C. Termination of a Contract. Either Party may terminate a Contract in accordance with Exhibit 1, the Work Order Contract Terms.

12. DEFINITIONS

In addition to the terms defined in this Agreement, all other capitalized terms used but not defined in this Agreement are defined in the Attorney General’s Model Public Contract Rules (OAR Chapter 137), and if not defined there, then in the Public Contracting Code (ORS Chapters 279A, 279B and 279C).

13. NOTICES

Any communications between the parties hereto or notices to be given hereunder regarding the Agreement shall be given in writing by e-mail, to Contractor at the email address set forth below and to OPRD at the email address set forth below, or to such other email addresses as either party may hereafter indicate pursuant to this Section 13. Any communication or notice shall be deemed to be received when the transmitting computer or machine generates receipt of the transmission. To be effective against OPRD, such e-mail transmissions must be confirmed by telephone notice to the OPRD Authorized Representative.

13.1 Contractor’s Authorized Representative

To be completed upon award of price agreement.

Name, Title (PHONE) Company (EMAIL) Address

13.2 OPRD’s Authorized Representative

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Jason Resch, Communications Division Manager 503-508-4149 (Cell Phone) Oregon Parks and Recreation Department jason.resch@oprd.oregon.gov 725 Summer Street NE, Suite C, Salem, OR 97301

14. KEY PERSONS

Contractor acknowledges and agrees that OPRD has selected Contractor, and is entering into this Agreement, because of the special qualifications of Contractor’s Key Persons identified in Contractor’s Proposal as those who will be performing work under the Contracts. Contractor shall notify OPRD before substituting or replacing any Key Person. Any replacement of a Key Person shall have equivalent or better qualifications than the Key Person being replaced.

15. AUTHORIZED SIGNATURES

SAMPLE (Contractor)

By (Name/Title) Date

STATE OF OREGON acting by and through its Oregon Parks and Recreation Department (OPRD)

By (Name/Title) Date

Form reviewed by John McCormick, Sr. Assistant Attorney General, by email dated ##, ####.

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AGREEMENT EXHIBIT 1

Work Order Contract Terms

1. DELIVERABLES AND SERVICES PAYMENT OBLIGATION; COOPERATION

1.1 Deliverables and Payment. OPRD will pay only for deliverables and Services that meet the specifications and performance standards specified in this Work Order Contract (the “Contract”). If OPRD determines that any deliverables or Services do not meet these specifications or performance standards, OPRD shall notify Contractor of OPRD’s rejection of the deliverable(s) or Services. Upon receipt of notice of non-acceptance, Contractor shall, within a 15-day period, modify or improve the rejected deliverable(s) and Services at Contractor’s sole expense to ensure that the deliverable(s) and Services meet such specifications or performance standards, and shall notify OPRD in writing that it has completed such modifications or improvements and re-tender them to OPRD. OPRD shall thereafter review the modified or improved deliverable(s) within 15 days of receipt of Contractor's delivery. Failure of the deliverable(s) and Services to meet the specifications and performance standards after the second tender following OPRD’s initial rejection of the deliverable(s) or Services shall constitute a default by Contractor. Upon such default, OPRD may either (i) notify Contractor of such default and instruct Contractor to modify or improve the deliverable(s) and Services or (ii) notify Contractor of such default and instruct Contractor to cease work, in which case Contractor shall refund to OPRD all amounts paid by OPRD related to such deliverable(s) and Services. Such refund is in addition to, and not in lieu of, any other remedies OPRD may have for Contractor’s default.

1.2 Cooperation. Contractor understands and agrees that, as part of this Work Order Contract, Contractor may be required to work with other OPRD contractors who may be working on similar projects. OPRD and Contractor acknowledge and agree that this cooperation is essential to the mutual goal of both parties for accurate and valuable use by OPRD. In the event of a conflict between contractors who must cooperate, Contractor shall notify OPRD’s Contract Administrator and abide by OPRD’s direction(s).

2. COMPENSATION, DELIVERY COSTS AND RELATED PROVISIONS

2.1 Compensation

A. OPRD shall pay Contractor according to the Contract for Services performed and deliverables accepted, and will not pay Contractor any amounts in excess of the fixed prices or not-to-exceed amounts set forth in the Contract.

B. Unless otherwise agreed in a Contract, OPRD shall not reimburse Contractor for any expenses under this Contract. If OPRD does agree in a Contract to reimburse Contractor for its expenses, any such request for reimbursements may not exceed the applicable rates set forth in the State of Oregon Accounting Manual, located at: https://www.oregon.gov/das/Financial/Acctng/Documents/40.10.00.pdf.

2.2. Delivery Costs. For any tangible deliverables that require delivery to OPRD, Contractor shall transmit all deliverables to OPRD FOB Destination. Contractor shall prepay all delivery costs identified in the Contract. OPRD shall reimburse Contractor for delivery costs only if:

A. Contractor has included the delivery costs as a separate line item in the invoice;

B. Contractor provides documentation with each invoice to verify all delivery costs; and https://www.oregon.gov/das/Financial/Acctng/Documents/40.10.00.pdf

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C. Unless OPRD has requested expedited delivery in the Contract, Contractor has used a freight or parcel carrier reasonably available at least cost to OPRD, consistent with the delivery schedule specified in this Contract.

2.3 Invoicing

A. Contractor shall submit invoices according to the invoicing schedule set forth in the Contract. If no invoicing schedule is set forth in the Contract, Contractor shall submit a single invoice to OPRD requesting payment for the full Contract amount only after all Services have been completed and all deliverables have been submitted to OPRD.

B. Contractor shall submit invoice(s) to the OPRD authorized representative identified in the Contract. Contractor may submit invoices to OPRD by e-mail.

C. Contractor shall include, with each invoice, sufficient detailed information of the Services performed and the deliverables provided for OPRD to reconcile the invoice to the Contract and any amendments.

2.4 Payments. For purposes of this Contract, “Business Days” means Monday through Friday, 8:00 a.m. to 5:00 p.m., Pacific Time, excluding State of Oregon holidays.

A. OPRD will pay only for deliverables and Services accepted by OPRD.

B. OPRD will not pay for Services performed or deliverables provided under any Contract issued under this Contract before the Contract Effective Date or after the termination or expiration of the Contract.

C. OPRD will pay Contractor within 30 days after OPRD has received a correct invoice and determined that Contractor has completed all required Services and deliverables subject to the invoice. OPRD may, in its sole discretion, pay Contractor either by check or by electronic funds transfer into an account specified by Contractor.

D. OPRD will use best efforts to notify Contractor within ten (10) Business Days after receipt of each invoice if revisions or corrections to the invoice are necessary. If revisions or corrections are necessary, OPRD will pay Contractor no later than 30 days after receipt of the revised invoice.

E. Any interest for overdue payment is subject to ORS 293.462.

F. OPRD’s payment obligations under this Contract are conditioned upon OPRD’s receiving funding, appropriations, limitations, allotments, or other expenditure authority sufficient to allow OPRD, in the exercise of its reasonable administrative discretion, to meet its payment obligations under this Contract. Contractor is not entitled to receive payment under this Contract from any part of Oregon state government other than OPRD. Nothing in the Agreement or this Contract is to be construed as permitting any violation of Article XI, section 7 of the Oregon Constitution or any other law regulating liabilities or monetary obligations of OPRD.

3. CONTRACT AMENDMENTS TO EXTEND EXPIRATION DATE; EFFECT OF CONTRACT EXPIRATION

OR TERMINATION

3.1 Contract Amendments to Extend Expiration Date. Any amendment to extend the expiration date of this Contract will be effective only if the Agreement is in effect on the date the amendment to extend the Contract expiration date is signed by OPRD and Contractor.

3.2 Effect of Contract Expiration. Contract expiration does not terminate any other contract between OPRD and Contractor, or the Agreement. If the Agreement expires or is terminated prior to Contract expiration, Attach D - Sample Price Agreement final 03.14.22.docx Page 7 of 24 this Contract will remain in effect for the outstanding term of the Contract, unless this Contract is terminated earlier according to its terms. The terms of the Agreement will continue to be incorporated into this Contract and will remain in effect solely for such purpose.

4. OWNERSHIP, LICENSES, AND THIRD-PARTY MATERIALS

4.1 Definitions. As used in this Section 4, and elsewhere in this Agreement and each Contract, the following terms have the meanings set forth below:

i. "Intellectual Property" means any patent, copyright, trade secret, trademark, trade dress, mask work, utility design, or other proprietary right.

ii. "Contractor Intellectual Property" means any Intellectual Property owned by Contractor and developed independently from the Services.

iii. "Third Party Intellectual Property" means any Intellectual Property, owned by parties other than OPRD or Contractor.

iv. "Work Product" means every invention, discovery, work of authorship, trade secret, or other tangible or intangible item and all Intellectual Property rights therein that Contractor is required to deliver to OPRD pursuant to the Services.

4.2 Original Work Product. All Work Product and individual elements of Work Product created originally by Contractor pursuant to the Services in whatever form, shall be the exclusive property of OPRD. OPRD and Contractor agree that any such originally created Work Product and elements thereof are "work made for hire" of which OPRD is the author within the meaning of the United States Copyright Act. If for any reason such original Work Product created pursuant to the Services is not "work made for hire," Contractor hereby irrevocably assigns to OPRD any and all of its rights, title, and interest in all original Work Product created pursuant to the Services, whether arising from copyright, patent, trademark, trade secret, or any other state or federal intellectual property law or doctrine. Upon OPRD's reasonable request, Contractor shall execute such further documents and instruments necessary to fully vest such rights in OPRD. Contractor agrees that Contractor shall not, and is estopped to, assert against OPRD and the State of Oregon, or any of their assignees, any and all rights relating to original Work Product created pursuant to the Services, 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.

4.3 Contractor Intellectual Property. With respect to Work Product or individual elements of Work Product that are Contractor Intellectual Property, or a derivative work of Contractor Intellectual Property, Contractor hereby grants to OPRD an irrevocable, exclusive, perpetual, royalty-free license to use, reproduce, prepare derivative works based upon, distribute copies of, perform and display the Contractor Intellectual Property for OPRD's business purposes, and to authorize others to do the same on OPRD's behalf.

4.4 Third Party Intellectual Property. In the event that Work Product created by Contractor under a WOC is Third Party Intellectual Property, a derivative work based on Third Party Intellectual Property, or is a compilation that includes Third Party Intellectual Property, Contractor shall secure on OPRD's behalf, and in the name of OPRD, an irrevocable, exclusive, perpetual, royalty-free license to use, reproduce, prepare derivative works based upon, distribute copies of, perform and display the pre-existing elements of the Third Party Intellectual Property employed in the Work Product, and to authorize others to do the same on OPRD's behalf.

4.5 License in Work Products. Subject to OPRD’s rights to terminate the following license with respect to particular Work Product, Contractor may publicly display copies of the unmodified final Work Product to self-promote the Contractor’s collaboration with OPRD on social media platforms, and showcase the Work on Contractor’s website; provided that (i) Contractor receives OPRD’s written permission in each

Attach D - Sample Price Agreement final 03.14.22.docx Page 8 of 24 instance to display the Work Product as set forth in this Section, and (ii) Contractor must include a statement or other information indicating that Contractor produced the Work Product on behalf of OPRD.

OPRD may terminate the license set forth in this Section with respect to any or all Work Product delivered to OPRD under Contracts by giving Contractor written notice of such termination.

4.6 Clearance of Rights. Notwithstanding the generality of Sections 4.2 through 4.5, Contractor shall ensure that all Deliverables and Work Product fully cleared in perpetuity for OPRD’s and the State of Oregon’s reproduction, distribution, broadcast exhibition, public performance, and that all publicity releases are acquired, throughout the world, in all media, whether now or hereafter known, without any limitation or restriction whatsoever, and without any additional payments of any sort required to be made by OPRD;

provided that Contractor shall not be responsible for such clearance with respect to any elements of a Deliverable or Work Product that Contractor selects for use from creative assets (e.g., photography, artwork, fonts, music, video, etc.), previously acquired by OPRD and made available to Contractor by OPRD for use in the Work Product or Deliverables.

4.7 Third Party Costs. If any Contractor will be required to pay licensing or other costs to third parties for any Deliverables or Work Products specified in a Contract, including any costs necessary to clear rights as required by Section 4.6 above, Contractor must notify OPRD prior to entering into the Contract, and any such costs must be set forth in the applicable Contract.

5. REPRESENTATIONS AND WARRANTIES

The warranties specified in this section are in addition to, and not in lieu of, any other warranties provided. All warranties are cumulative and will be interpreted broadly to give OPRD the greatest warranty protection available. Contractor represents and warrants that:

5.1 Contractor has the authority to enter into and perform according to this Contract and that this Contract, when executed and delivered, is a valid and binding obligation of Contractor enforceable according to its terms;

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

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

5.4 When used as authorized by this Contract, no deliverable infringes nor will OPRD’s use, duplication or transfer of the deliverable infringe, any copyright, patent, trade secret or other proprietary right of any third party;

5.5 All deliverables will materially conform to requirements and specifications set forth in this Contract, including any Documentation provided by Contractor, and will be free from error or defect that materially impairs their use, and shall be free from material defects in materials, workmanship and design; and

5.6 Except as described in this Contract, all deliverables will be transferred to OPRD free and clear of any and all restrictions on or conditions of transfer, modification, licensing, sublicensing, direct or indirect distribution, or assignment, and free and clear of any and all liens, claims, mortgages, security interests, liabilities, and encumbrances of any kind.

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6. COMPLIANCE WITH APPLICABLE LAWS AND STANDARDS

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

6.2 OPRD’s performance under this Contract is conditioned upon Contractor's compliance with the obligations intended for contractors under ORS 279B.220, 279B.225 (if applicable to this Contract), 279B.230 and 279B.235 (if applicable to this Contract), which are incorporated by reference herein.

6.3 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 plastic resin products and recycled products (as “recycled product” is defined in ORS 279A.010(1)(ii)).

6.4 Compliance with Executive Order 21-29. Contractor shall comply with EO 21-29. Contractor certifies that for the term of the Contract or the duration of EO-21-29, whichever expires or terminates first, each Worker who provides goods and services at an Executive Branch Worksite is Fully Vaccinated against COVID-19 unless an exception under paragraph 6 of EO 21-29 applies. The definitions in Section 6.5 (“Special Definitions for Interpreting EO 21-19 Obligations”) apply to this section. Contractor shall maintain in its records Proof of Vaccination or permitted exceptions under section 6 of EO 21-29 for such Workers providing goods and services at an Execution Branch Worksite. Contractor shall provide written certification of its compliance with EO 21-29 on request of the State. The State reserves the right to request the documentation supporting Contractor’s certification. Contractor’s compliance with this section is a material term of this Contract, and Contractor’s failure to comply constitutes a breach entitling Agency to terminate this Contract for cause without providing an opportunity to cure.

6.5 Special Definitions for Interpreting EO 21-19 Obligations

6.5.1 “EO 21-29” means Governor of the State of Oregon’s Executive Order 21-29 as may be amended. https://www.oregon.gov/gov/Documents/executive_orders/eo_21-29.pdf.

6.5.2 ‘FAQ” means the Executive Order 21-29 Vaccination Requirements for State Contractors Frequently Asked Questions as may be amended.

https://www.oregon.gov/das/Procurement/Documents/ExecutiveOrder21-29_ContractorFAQ.pdf

6.5.3 The terms "Executive Branch," "COVID-19," "Fully Vaccinated," "Proof of Vaccination," "Employee," and "Worker" have the meanings defined in EO 21-19.

6.5.4 “Worksite” has the meaning defined in the FAQ.

7. AMENDMENTS

7.1 Contract Amendments. OPRD and Contractor may amend this Contract to: extend the expiration date of the Contract, add to or make changes in the deliverables to be provided, Services to be performed, or both, and the related compensation due, make any other changes allowed by applicable Oregon statute and administrative rule, or make any changes required by changes in federal, state, or local law.

7.2 Amendment Method. No amendment to this Contract is effective unless it is in writing signed by OPRD and Contractor, and all approvals required by applicable law have been obtained.

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8. TIME IS OF THE ESSENCE

Contractor agrees that time is of the essence in the performance of its obligations under this Contract.

9. FORCE MAJEURE

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

10. INSURANCE

Contractor shall obtain at Contractor’s expense the insurance specified in this Section 10 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 tail coverage requirements, and all warranty periods that apply. Contractor shall obtain the insurance coverage specified in this section 10 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 OPRD. 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.

10.1 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). Contractor shall require and ensure that each of its subcontractors complies with these requirements. 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 $500,000 each accident. If Contractor is an employer subject to any other state’s workers’ compensation law, Contactor 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 $500,000 and shall require and ensure that each of its out-of-state subcontractors complies with these requirements.

10.2 Commercial General Liability. Commercial General Liability Insurance covering bodily injury and property damage in a form and with coverage that is satisfactory to OPRD. 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 $1,000,000 per occurrence. Annual aggregate limit shall not be less than $1,000,000.

10.4 Excess/Umbrella Insurance. A combination of primary and excess/umbrella insurance may be used to meet the minimum insurance requirements.

10.5 Additional Insured. The Commercial General Liability insurance and Automobile Liability insurance 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

Attach D - Sample Price Agreement final 03.14.22.docx Page 11 of 24 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 Contractor’s 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 04 13 or equivalent.

10.6 Certificate(s) and Proof of Insurance. Contractor shall provide to OPRD Certificate(s) of Insurance for all required insurance before performing any Services and providing any deliverables 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, where required. 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.

The certificate must reference Agreement #8598# and be submitted to OPRD’s Authorized Representative designated in section 13.2 of the Agreement.

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

10.8 OPRD Acceptance. All insurance providers are subject to OPRD acceptance. If requested by OPRD, Contractor shall provide complete copies of insurance policies, endorsements, self-insurance documents and related insurance documents to OPRD’s representatives responsible for verification of the insurance coverages required under this section 10.

11. INDEPENDENT CONTRACTOR STATUS; RESPONSIBILITY FOR TAXES AND WITHHOLDING

11.1 Contractor shall perform all Services as an independent contractor. Although OPRD has the right (i) to determine and modify the delivery schedule for Services to be performed and (ii) to evaluate the quality of the completed performance, OPRD cannot and will not control the means or manner of Contractor's performance. Contractor is responsible for determining the appropriate means and manner of performing any Services required under this Contract. Contractor certifies, represents and warrants that Contractor is an independent contractor of OPRD under all applicable State and federal law. Contractor is not an "officer", "employee", or "agent" as those terms are used in ORS 30.265 of OPRD or the State of Oregon. Neither party shall make any statements, representations, nor commitments of any kind or to take any action binding on the other except as provided for herein or authorized in writing by the party to be bound.

11.2 If Contractor is currently performing work for the State of Oregon or the federal government, Contractor by signature to this Contract or acceptance of an electronic ordering device, represents and warrants:

Contractor's performance of this Contract creates no potential or actual conflict of interest as defined by ORS 244 and that no rules or regulations of Contractor's employing agency (state or federal) would prohibit Contractor's performance of this Contract.

11.3 Contractor is responsible for all federal and state taxes applicable to compensation or payments paid to Contractor under this Contract, and OPRD will not withhold from compensation or payments to Contractor any amount(s) to cover Contractor's federal or state tax obligations unless Contractor is subject to backup withholding. Contractor is not eligible for any social security, unemployment insurance

Attach D - Sample Price Agreement final 03.14.22.docx Page 12 of 24 or workers' compensation benefits from compensation or payments paid to Contractor under this Contract.

11.4 If Contractor is a nonresident alien as defined in 26 USC § 7701(b)(1)(B), then Contractor shall, upon execution of this Contract, deliver to OPRD a completed and signed W-8 form,8233 form, or W-9 form, as applicable, from the Internal Revenue Service (“IRS”), as evidence that OPRD is not required by 26 USC 1441 to withhold part of Contractor's payment. Such forms are currently available at http://www.irs.gov.

OPRD may withhold payments to Contractor pending OPRD's receipt from Contractor of the applicable, completed and signed form. If OPRD does not receive the applicable, completed and signed form from Contractor, or if the IRS provides notice to OPRD that Contractor's information on the form provided is incorrect, OPRD will withhold as federal income tax 30% of all amounts OPRD owes to Contractor under this Contract.

12. INDEMNIFICATION; LIMITATION OF LIABILITY

12.1 General Indemnity. Contractor shall defend, save, hold harmless, and indemnify the State of Oregon (“State”), its agencies, officers, directors, agents and employees from and against all claims, suits, actions, losses, damages, liabilities, costs and expenses of any nature whatsoever (“Claims”) resulting from, arising out of, or relating to the acts or omissions of Contractor or its officers, employees, subcontractors, or agents under this Contract.

12.2 Indemnity for Infringement Claims. Without limiting the generality of section 12.1, Contractor shall defend, save, hold harmless and indemnify State, its agencies, officers, directors, agents, and employees from and against all claims, suits, actions, losses, damages, liabilities, costs, and expenses, arising out of or relating to any claims that the Services, the Work Product, Deliverables, or any other tangible or intangible item delivered under this Contract by Contractor that may be the subject of protection under any state or federal intellectual property law or doctrine, or OPRD’s reasonable use thereof, infringes any patent, copyright, trade secret, trademark, trade dress, mask work, utility design, or other proprietary right of any third party (“Infringement Claim”); provided, that State shall provide Contractor with prompt written notice of any Infringement Claim.

12.3 State shall reasonably cooperate in good faith, at Contractor’s reasonable expense, in the defense of Claims and Infringement Claims, and Contractor shall select counsel reasonably acceptable to the Oregon attorney general to defend such Claims and Infringement Claims and shall bear all costs of such counsel. Counsel must accept appointment as a special assistant attorney general under ORS chapter 180 before counsel may act in the name of, or represent the interests of, State, its agencies, officers, employees or agents. State may elect to assume its own defense with an attorney of its own choice and at its own expense at any time State determines important governmental interests are at stake. Subject to the limitations noted above, Contractor may defend such Claims and Infringement Claims with counsel of its own choosing provided that no settlement or compromise of any such Claims and Infringement Claims shall occur without the consent of State, which consent shall not be unreasonably withheld, conditioned or delayed.

12.4 Except for liability arising out of or related to (i) sections 12.1 or 12.2 or (ii) claims for personal injury, including death, or damage to real property or tangible or intangible personal property or violation of the obligations of confidentiality set forth in section 18, arising from the negligence, reckless conduct or intentional acts of Contractor, its officers, employees or agents, Contractor's http://www.irs.gov/

Attach D - Sample Price Agreement final 03.14.22.docx Page 13 of 24 liability for damages to the State for any cause whatsoever is limited to the not-to-exceed compensation amount under this Contract.

13. ASSIGNMENT OF ANTITRUST RIGHTS

13.1 Contractor irrevocably assigns to State any claim for relief or cause of action which Contractor now has or which may accrue to Contractor in the future by reason of any violation of 15 U.S.C. § 1- 15 or ORS 646.725 or ORS 646.730, in connection with any deliverables or Services provided to Contractor for the purpose of carrying out Contractor’s obligations under this Contract, including, at State’s option, the right to control any such litigation on such claim for relief or cause of action.

13.2 Contractor shall require any subcontractors hired to perform any of Contractor’s duties under this Contract to irrevocably assign to State, as third party beneficiary, any right, title or interest that has accrued or which may accrue in the future by reason of any violation of 15 U.S.C. § 1-15 or ORS 646.725 or ORS 646.730, in connection with any deliverables or Services provided to the subcontractor for the purpose of carrying out the subcontractor’s obligations to Contractor in pursuance of this Contract, including, at State’s option, the right to control any such litigation on such claim for relief or cause of action.

14. EVENTS OF BREACH

14.1 Breach by Contractor. Contractor breaches this Contract if:

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

B. Contractor no longer holds a license or certificate that is required for Contractor to perform its obligations under this Contract and Contractor has not obtained the license or certificate within 30 calendar days after OPRD delivers notice of breach to Contractor or a longer period as OPRD may specify in the notice; or

C. Contractor commits any material breach of any covenant, warranty, obligation or certification under this Contract, fails to perform its obligations under this Contract within the time specified or any extension of that time, and Contractor fails to cure the breach within 30 calendar days after OPRD delivers notice of breach to Contractor or a longer period as OPRD may specify in the notice.

14.2 Breach by OPRD. OPRD breaches this Contract if:

A. OPRD fails to pay Contractor any amount pursuant to the terms of this Contract and fails to cure the failure to pay within 30 calendar days after Contractor delivers notice of breach to OPRD or a longer period as Contractor may specify in the notice; or

B. OPRD commits any material breach of any covenant, warranty, or obligation under this Contract, fails to perform its obligations hereunder within the time specified or any extension thereof, and OPRD fails to cure the breach within 30 calendar days after Contractor delivers notice of breach to OPRD or a longer period as Contractor may specify in the notice.

15. REMEDIES

15.1 OPRD's Remedies. If Contractor is in breach under section 14, then OPRD may, at OPRD’s option, pursue any or all of the remedies available under this Contract and at law or in equity, including, but not limited to:

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A. Termination of this Contract under section 16;

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

C. Initiation of an action or proceeding for damages, specific performance, declaratory or injunctive relief; or

D Exercise of the right of setoff, and withholding of amounts otherwise due and owing to Contractor in an amount equal to OPRD’s setoff right, without penalty.

These remedies are cumulative to the extent the remedies are not inconsistent, and OPRD may pursue any remedy or remedies singly, collectively, successively or in any order whatsoever. If it is determined for any reason that Contractor was not in breach under section 14, the rights and obligations of the parties shall be the same as if this Contract was terminated pursuant to section 16.

15.2 Contractor's Remedies. If OPRD terminates this Contract without cause under section 16.1.A, or if OPRD is in breach under section 14 and whether or not Contractor elects to exercise its right to terminate this Contract under section 16, Contractor's sole remedy is: for Services compensable on an hourly basis, a claim against OPRD for unpaid invoices, hours worked but not yet invoiced, and authorized expenses for Services completed and accepted by OPRD less any claims OPRD has against Contractor. If previous amounts paid to Contractor for Services exceed the amount due to Contractor under this section, Contractor shall pay the excess amount to OPRD immediately upon written demand.

15.3 Neither party is liable to the other for any indirect, consequential, special, incidental, reliance, or punitive damages of any kind or nature whatsoever (including, but not limited to any lost profits, lost revenues, lost savings, or harm to business), regardless of the foreseeability thereof. Each party hereby releases the other party, its subsidiaries and affiliates, and their respective officers, directors, managers, employees, and agents from any such claim.

15.4 Attorneys' Fees. Except for defense costs and expenses pursuant to section 12, neither OPRD nor Contractor is entitled to recover attorney's fees, court and investigative costs, or any other fees or expenses associated with pursuing a remedy for damages arising out of or relating to this Contract.

16. TERMINATION

16.1 OPRD

A. OPRD may, at its sole discretion, terminate this Contract for its convenience and without cause upon 30 days written notice by OPRD to Contractor.

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

i) OPRD fails to receive funding, appropriations, limitations, allotments or other expenditure authority at levels sufficient to pay for the Services; or

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

C. OPRD may terminate this Contract upon written notice to Contractor, or at a later date as OPRD may establish in the notice, if Contractor is in breach under section 14.

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Contractor shall stop performance under this Contract as directed by OPRD in any written notice of termination delivered to Contractor under this section 16.1.

16.2 Contractor. Contractor may terminate this Contract upon written notice to OPRD, or at a later date as Contractor may establish in the notice, if OPRD is in breach pursuant to section 14.

16.3 Effect of Termination. Contract termination shall not extinguish or prejudice OPRD’s right to enforce this Contract with respect to any breach of a Contractor warranty or any default or defect in Contractor’s performance that has not been cured. Contract termination, for any reason, does not terminate any other Contract between OPRD and Contractor, or the Agreement. If the Agreement is terminated prior to Contract termination, this Contract will remain in effect for the outstanding term of the Contract, unless terminated earlier according to its terms. The terms of the Agreement will continue to be incorporated into this Contract and will remain in effect solely for such purpose.

16.4 Return of Property. In the event of termination for whatever reason, Contractor shall deliver to OPRD all OPRD’s property, documents, information, works-in-process, Work Products, and other property that are or would be delivered to OPRD had this Contract been completed. Upon OPRD's request, Contractor shall surrender to anyone OPRD designates, all documents, information, research, works-in-process, Work Product and other property, that are deliverables or would be deliverables had this Contract been completed, that are in Contractor's possession or control and may be needed by OPRD to complete the Services.

16.5 Payment. In the event this Contract is terminated by OPRD for any reason, except for Contractor breach, OPRD will, consistent with section 15.2, compensate Contractor for all accepted deliverables, Services and works-in-process delivered to OPRD per section 16.4.

17. ACCESS TO RECORDS

Contractor shall retain, maintain, and keep accessible all records relevant to the Agreement and this Contract ("Records") for minimum of six (6) years, or a longer period as may be required by applicable law, following Contract termination or full performance, or until the conclusion of any audit, controversy or litigation arising out of or related to the Agreement or this Contract, whichever ending is later.

Contractor shall maintain all financial Records according to Generally Accepted Accounting Principles.

During this Record-retention period, Contractor shall permit OPRD, its duly authorized representatives, and the federal government access to the Records at reasonable times and places for purposes of examination and copying.

18. CONFIDENTIAL INFORMATION

18.1 Confidential Information. Contractor acknowledges that Contractor and Contractor’s employees or agents may, in the course of performing Contractor’s responsibilities under this Contract, be exposed to or acquire information that is confidential to OPRD. Any and all information of any form obtained by Contractor or Contractor’s employees or agents in the performance of this Contract shall be deemed to be confidential information of OPRD (“Confidential Information”). Any reports or other documents or items which result from the use of the Confidential Information by Contractor shall be treated with respect to confidentiality in the same manner as the Confidential Information. Confidential Information shall be deemed not to include information that (a) is or becomes (other than by disclosure by Contractor) publicly known or is contained in a publicly available document; (b) is furnished by OPRD to others without restrictions similar to those imposed by this Contract; (c) is rightfully in Contractor’s possession without the obligation of nondisclosure prior to the time of its disclosure under this Work Order

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Contract; or (d)…