Attachment_A_Sample_A&E_PA_OSMB_Hydraulic_Engineering_Services.pdf

Hydraulic Engineering Services

#PO-DASOBO-XXXXXXX

RFP ATTACHMENT A

SAMPLE

STATE OF OREGON

PROFESSIONAL SERVICES PRICE AGREEMENT

(for Hydraulic Engineering Services)

PA#: 0000

This Professional Services Price Agreement (“PA”) is between the State of Oregon (“State”), acting by and through its Oregon Department of Administrative Services (“DAS”) on behalf of the Oregon State Marine Board ( “Agency”) or (“OSMB”), collectively “Owner”, and :

CONSULTANT: [Consultant Name]

ADDRESS: [Street Address] [City, State Zip]

PHONE: [Phone] EMAIL: [Email] (the “Consultant”) Owner and Consultant are collectively referred to as the "Parties" and individually as a “Party”.

1. Purpose. This PA is for the purpose of identifying the form of work order contract (“Work Order Contract” or

“Contract” or “WOC”) to be used and the general terms and conditions applicable to the Contracts entered into between Owner and Consultant pursuant to which Consultant shall provide Hydraulic Engineering Services (the “Services”) for the Owner on particular projects to support and advance the OSMB Boating Facilities Program Boating Facility Grant projects, as well as other related or similar projects, involving hydraulic engineering design and analysis for infrastructure improvements associated with public recreational boating facilities and predominantly water dependent amenities (such as boat ramps, docks, piers, parking facilities, sanitation facilities, marine sewage disposal facilities) and related improvements (such as gangways, debris deflection booms and pilings).

2. Owner’s Representative. For communication sent to OSMB, the Consultant shall contact the Owner’s

Representative designated as follows:

Janine Belleque Boating Facilities Program Manager Email: Janine.Belleque@boat.oregon.gov

OSMB may change the Owner Representative by promptly sending written notice (email notice acceptable) to Consultant.

3. Scope of Services. Consultant agrees to perform the Services and provide the deliverables required under each WOC in accordance with the terms and conditions for WOCs as set forth in this PA. The Services included in a WOC must be within the Scope of Services set forth below:

Primary Services:

• Complete 1-D and 2-D hydraulic modeling

• Preparation of required hydraulic and hydrologic data collection

• FEMA no-rise certification, sediment transport analysis, scour analysis

• Documentation, reports, summaries

• Calculations

• Preliminary designs

• Design review

• Environmental permit support

• Final designs including plans, specifications, estimates

• Inspection services

Supplemental Services:

• Geotechnical boring and analysis

• Structural analysis

• Calculations

4. WOC Assignment Process. Owner and Consultant intend to enter into binding and enforceable contracts for

Consultant’s performance of the Services by execution of WOCs substantially in the form attached hereto as mailto:Janine.Belleque@boat.oregon.gov

Attachment 4, that specifies the Services to be performed and makes the standard terms and conditions set forth in Attachment 1 and the Key Personnel and Rate Schedule set forth in Attachment 3 applicable to those WOCs. Owner will assign WOCs based on the qualifications-based selection process set forth in the WOC Assignment Process in Attachment 2 to this PA. All WOC assignments are tentative until negotiations are successfully completed, all required signatures have been obtained on the WOC, and Owner has issued a notice to proceed (“NTP”) to Consultant.

5. Effective Date; Expiration and WOC Assignment Period; Termination.

a. Effective Date. This PA shall become effective on the date this PA has been signed by the Parties and when all required governmental approvals have been obtained.

b. Expiration and WOC Assignment Period

i. Expiration. This PA shall have a limited WOC assignment period, but this PA will not expire until the later of the following occurs: (1) the expiration of the WOC assignment period, or (2) the expiration or termination of all WOCs assigned under this PA.

ii. WOC Assignment Period. Unless terminated or extended, the WOC assignment period ends 3 years from the effective date of this PA.

iii. Extension of WOC Assignment Period. Upon mutual agreement of the Parties, the WOC Assignment Period may be extended for additional time periods up to maximum total term of 10 years.

iv. Effect of Termination. Expiration shall not extinguish or prejudice Owner’s right to enforce any breach of a Consultant warranty or any default or defect in Consultant’s performance that has not been cured.

WOCs entered into between the Parties prior to the expiration date of this PA shall remain in full force and effect and may be amended, according to their terms, despite the expiration of this PA.

6. Federal Funding. Individual WOCs entered into pursuant to this PA may include federal funding. If federal funding is involved, Owner will notify Consultant during the WOC Assignment Process and the federal funding requirements will be included in the WOC.

7. Compensation. Payments to Consultant may be made only in accordance with the Services performed, the performance schedule, the applicable fee schedule and the payment requirements set forth in any WOCs assigned under this PA.

8. Background Checks. At Owner’s request, Consultant shall run background checks and screen Consultant’s employee or subcontractor employee before that employee will be allowed access to Agency premises. A one-time criminal history background check will be required for each Consultant Project Manager when required to access specific facilities to provide Services under a WOC.

9. Certified Small Business Outreach Plan. If Consultant submitted a Certified Small Business Outreach Plan as part of the procurement process for this PA, that plan is incorporated by reference into this PA as though fully set forth herein for WOCs issued under this PA that do not include any federal funding. Consultant shall conduct the outreach, subcontracting and assistance efforts included in Consultant’s Certified Small Business Outreach Plan.

10. Price Agreement Documents.

This PA includes the following attachments, each of which is attached and incorporated into this PA as though fully set forth herein:

Attachment 1 - Standard Terms and Conditions for Professional Services

Attachment 2 - WOC Assignment Process

Attachment 3 - Key Personnel and Rate Schedule

Attachment 4 - [Sample] Consultant Professional Services Work Order Contract Exhibit A: [Sample] Statement of Work Exhibit B: [Sample] Consultant Compensation Exhibit C: [Sample] Additional Insurance Requirements [Reserved if not applicable] Exhibit D: [Sample] Delivery Schedule Exhibit E: [Sample] Federal Terms and Conditions [Reserved if not applicable]

Certification:

A. Any individual (the undersigned) signing on behalf of Consultant hereby certifies under penalty of perjury:

(1) Consultant has provided its correct TIN to Owner, in the manner and format requested by Owner.

(2) Consultant is not subject to backup withholding because (a) Consultant is exempt from backup withholding,

(b) Consultant has not been notified by the IRS that Consultant is subject to backup withholding as a result of a failure to report all interest or dividends, or (c) the IRS has notified Consultant that Consultant is no longer subject to backup withholding.

(3) The undersigned is authorized to act on behalf of Consultant, the undersigned has authority and knowledge regarding Consultant’s payment of taxes, and to the best of the undersigned’s knowledge, Consultant is not in violation of any Oregon Tax Laws. For purposes of this certification, “Oregon Tax Laws” means (i) all tax laws of this state, including but not limited to ORS 305.380(4), ORS 305.620 and ORS chapters 316, 317, and 318; and (ii) any tax provisions imposed by a political subdivision of this state that applied to Consultant, to Consultant’s property, operations, receipts, or income, or to Consultant’s performance of or compensation for any work performed by Consultant; and (iii) any tax provisions imposed by a political subdivision of this state that applied to Consultant, or to goods, services, or property, whether tangible or intangible, provided by Consultant; and (iv) any rules, regulations, charter provisions, or ordinances that implemented or enforced any of the foregoing tax laws or provisions.

B. Any individual (the undersigned) signing on behalf of Consultant hereby certifies the undersigned is authorized to sign this WOC and that:

(1) Consultant has read this Contract, understands it, and agrees to be bound by its terms and conditions.

(2) Consultant understands and agrees that various Exhibits to the Contract are not physically attached but are incorporated by reference in PA Section 10 and have the same force and effect as if fully set forth herein.

(3) Consultant has, and gives employees a written notice of, a policy and practice, that meets the requirements described in ORS 279A.112. Such policy both prohibits, and prescribes disciplinary measures for, conduct that constitutes sexual harassment, sexual assault and discrimination against employees who are members of a protected class. Consultant agrees, as a material term of the Contract, to maintain the policy and practice in force during the entire term of the Contract (see additional information and sample policy template at: https://www.oregon.gov/DAS/Procurement/Pages/hb3060.aspx).

(4) Consultant is an independent contractor as defined in ORS 670.600 and as described in IRS Publication 1779 (https://www.irs.gov/pub/irs-pdf/p1779.pdf).

(5) In the event that Consultant is a general partnership or joint venture, Consultant signature(s) on this Contract constitutes certifications to the above statements pertaining to the partnership or joint venture, as well as certifications of the above statements as to any general partner or joint venturer signing this Contract.

(6) Consultant understands and acknowledges it is subject to the Oregon False Claims Act (ORS 180.750 to 180.785) 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. Consultant shall immediately disclose (in writing) to Owner 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:

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

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

Consultant must include Sections A and B of this Certification 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 sections, except to identify the subcontractors or subgrantee that will be subject to those provisions.

Electronic Signatures. The Parties agree that signatures showing on PDF documents, including but not limited to PDF copies of the PA, WOC and amendments, submitted or exchanged via email are “Electronic Signatures” under ORS Chapter 84 and bind the signing Party and are intended to be and can be relied upon by the Parties.

Owner reserves the right at any time to require the submission of the hard copy originals of any documents.

https://www.oregon.gov/DAS/Procurement/Pages/hb3060.aspx https://www.irs.gov/pub/irs-pdf/p1779.pdf

Agreed To and Signed By:

Consultant Name Name – Title Date

Oregon State Marine Board Signature Authorization to Commit and Disburse Funds Larry Warren – OSMB Director Date

Department of Administrative Services Procurement Services Brent Lutz – PS Manager Date

Review for the Owner by the Department of Justice Name/Title Date (For Solicitation only)

ATTACHMENT 1

STANDARD TERMS AND CONDITIONS FOR PROFESSIONAL SERVICES

APPLICABLE GENERALLY TO THE PRICE AGREEMENT AND INCORPORATED INTO WORK

ORDER CONTRACTS

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

(a) Professional Standard of Care. Consultant shall perform all Services under the Contract in accordance with the degree of skill and care ordinarily used by competent practitioners of the same professional discipline when performing similar services under similar circumstances, taking into consideration the contemporary state of the practice and the Project conditions.

(b) Responsibility of Consultant.

(i) Consultant shall be responsible for the professional quality, technical accuracy, and coordination of all designs, drawings, specifications, and other Services and deliverables furnished by Consultant under the Contract. Consultant shall prepare, in accordance with the Standard of Care, all drawings, plans, specifications, deliverables and other documents so they accurately reflect, fully comply with and incorporate all applicable laws, rules, and regulations, and so that they are complete and functional for the purposes intended, except as to any deficiencies due to causes beyond the control of Consultant.

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

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

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

(iv) If Consultant is comprised of more than one legal entity (for example, a joint-venture or partnership), each such entity shall be jointly and severally liable under the Contract.

(v) Permits and Licenses.

1. Permits and licenses to conduct business. Consultant shall obtain, hold, maintain and fully pay for during the term of the Contract all permits and licenses required by law for Consultant to conduct its business and perform the Services under the Contract.

2. Permits and licenses required for the Project. Consultant shall obtain, hold and maintain during the term of the Contract all permits and licenses required for the Project (for example, permits from regulatory authorities and use permits or licenses from owners of real and personal property), but Owner shall pay for such permits and licenses. Consultant shall review the Project site, if applicable, and the nature of the Services that Consultant shall perform under the Contract.

Consultant shall advise Owner throughout the course of the Project as to the necessity of obtaining all Project permits and licenses, the status of the issuance of any such permits and licenses, and any issues or impediments related to the issuance or continuation of any such permits and licenses.

(c) Consultant represents and warrants to Owner that:

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

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

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

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

(v) Consultant is duly licensed to perform the Services, and if there is no licensing requirement for the profession or Services, is duly qualified and professionally competent to perform the Services;

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

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

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

(ix) The Project, when completed and if constructed in accordance with the intent established by the drawings, plans, specifications, deliverables and other documents prepared by Consultant pursuant to this Contract, shall be code-compliant, structurally sound, and a complete and properly functioning facility suitable for the purposes for which it is intended;

(x) The published specifications of the “Automated Systems” that Consultant has specified, designated and planned pursuant to this Contract conform to the Contract requirements. For the purposes of this subsection, “Automated Systems” shall mean any computers, software, firmware, heating, ventilation and air conditioning (“HVAC”) systems, elevators, electrical systems, fire or life safety systems, security systems and any other electrical, mechanized or computerized devices serving the Project.

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

2. Key Persons.

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

(b) No Key Person may delegate performance of any management powers or other responsibilities the Key Person is required to provide under the Contract to another of Consultant’s or subconsultant’s personnel without first obtaining the written consent of Owner. Further, Consultant shall not re-assign or transfer any Key Person to other duties or positions such that the Key Person is no longer available to provide Owner with the Key Person’s expertise, experience, judgment, and personal attention according to any schedule established under the Contract without first obtaining Owner's prior written consent to such re-assignment or transfer. Any of these actions shall constitute a material breach of Contract.

(i) Notification of request to change a Key Person shall be in writing (via email or other form as may be required by Owner). Throughout the term of the Contract, Consultant shall provide updated information (if requested by Owner) to demonstrate the continuing qualifications of any staff working on Owner projects, including those approved as Key Persons.

(ii) Consultant shall remove any individual or subconsultant from the Project if so directed by Owner in writing following discussion with Consultant, provided that Consultant shall have a reasonable time period within which to find a suitable replacement.

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

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

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

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

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

3. Subconsultants.

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

(b) In addition to any other provisions Owner may require, Consultant shall include, in any permitted subcontract under the Contract, contractual provisions that shall require any subcontractor (which may also be referred to as “subconsultant”) to comply with Sections 1, 5, 7, 8, 11(g), 11(k), and 11(o) of these Contract provisions and the limitations provided in Exhibit B, Consultant Compensation, in the performance of the subcontracted Services under the Contract, as if the subcontractor were Consultant. Owner’s consent to any subcontract shall not relieve Consultant of any of its duties or obligations under the Contract, including with respect to any Services, whether performed or to be performed by Consultant or a subcontractor.

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

4. Design Within Funding Limit. [Reserved]

5. Ownership of Work Product.

(a) Definitions. The following terms have the meanings set forth below:

(i) “Consultant Intellectual Property” means any intellectual property owned by Consultant and developed independently from the Contract.

(ii) “Third Party Intellectual Property” means any intellectual property owned by parties other than Owner or Consultant.

(iii) “Work Product” means every invention, discovery, work of authorship, trade secret or other tangible or intangible item, and all intellectual property rights therein, that Consultant is required to deliver to Owner pursuant to the Contract.

(b) Work Product. All Work Product created by Consultant pursuant to the Contract, including derivative works and compilations, and whether or not such Work Product is considered a “work made for hire,” shall be the exclusive property of Owner. Owner and Consultant agree that Work Product that constitutes original works of authorship (the “Original Work Product”) is “work made for hire” of which Owner is the author within the meaning of the United States Copyright Act. If for any reason Original Work Product created pursuant to the Contract is not “work made for hire,” Consultant hereby irrevocably assigns to Owner any and all of its rights, title, and interest in all Original Work Product created pursuant to the Contract, whether arising from copyright, patent, trademark, trade secret, or any other state or federal intellectual property law or doctrine.

Upon Owner’s reasonable request, Consultant shall execute such further documents and instruments necessary to fully vest such rights in Original Work Product in Owner. Consultant forever waives any and all rights relating to Original Work Product created pursuant to the Contract, including without limitation, any and all rights arising under 17 USC §106A or any other rights of identification of authorship or rights of approval, restriction or limitation on use or subsequent modifications. However, see Sections 5(c), 5(d), 5(e) and 5(f) immediately below, for provisions applicable to Consultant Intellectual Property, Third Party Intellectual Property, Consultant Intellectual Property derivative works and Third-Party Intellectual Property derivative works.

(c) Consultant Intellectual Property. In the event that any Work Product is Consultant Intellectual Property or a derivative work based on Consultant Intellectual Property or a compilation that includes Consultant Intellectual Property, or in the event any Consultant Intellectual Property is needed by Owner to reasonably enjoy and use any Work Product, Consultant hereby grants to Owner an irrevocable, non-exclusive, non-transferable, perpetual, royalty-free license to use, reproduce, prepare derivative works based upon, distribute copies of, perform and display Consultant Intellectual Property and the pre-existing elements of Consultant Intellectual Property employed in the Work Product, including the right of Owner to authorize contractors, consultants and others to do the same on Owner’s behalf. At the request of Consultant, Owner shall take reasonable steps to protect the confidentiality and proprietary interests of Consultant in any Consultant Intellectual Property licensed under this Section, within the limits of the Oregon Public Records Law (ORS 192.311 through 192.478) and the Oregon Uniform Trade Secrets Act (ORS 646.461 to 646.475).

(d) Third Party Intellectual Property. In the event that Work Product is Third Party Intellectual Property or a derivative work based on Third Party Intellectual Property or a compilation that includes Third Party Intellectual Property, or in the event any Third Party Intellectual Property is needed by Owner to reasonably enjoy and use any Work Product, Consultant shall secure on Owner’s behalf and in the name of Owner, an irrevocable, non-exclusive, non-transferable, perpetual, royalty-free license to use, reproduce, prepare derivative works based upon, distribute copies of, perform and display the Third Party Intellectual Property and the pre-existing elements of the Third Party Intellectual Property employed in the Work Product, including the right of Owner to authorize contractors, consultants and others to do the same on Owner’s behalf.

(e) Limited Owner Indemnity. To the extent permitted by the Oregon Constitution, Article XI, Section 7, and by the Oregon Tort Claims Act, ORS 30.260 through 30.400, Owner shall indemnify and hold Consultant harmless from liability arising out of Owner’s re-use or alteration of the Work Product.

(f) Consultant Use of Work Product. Notwithstanding anything to the contrary in this Section 5, Consultant may refer to the Work Product in its brochures or other literature that Consultant uses for advertising purposes and, unless specified otherwise in Exhibit A, Statement of Work, Owner hereby grants to Consultant a non-exclusive, non-transferable, royalty-free license to use, reproduce, prepare derivative works based upon, distribute copies of, perform and display Owner-owned Work Product on other unrelated projects, except for any “Confidential Information” protected from disclosure under the provisions of Section 7 below, pertaining to Confidentiality and Non-Disclosure.

6. Certified Firms and Certified Firm Outreach Plan.

(a) Certified Firms. Respecting certification as a disadvantaged business enterprise, minority-owned business, woman-owned business, business that a veteran owns or an emerging small business under ORS 200.055 (a “Certified Firm”), as and when applicable, Consultant shall maintain any certifications applicable to Consultant, and require in its subcontracts that Subconsultants and subcontractors maintain any applicable certifications required by Section 2, Chapter 325, Oregon Laws 2015, as amended by Section 26, Chapter 565, Oregon Laws 2015 as a material condition of the Contract.

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

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

7. Confidentiality and Nondisclosure.

(a) Confidential Information. Consultant acknowledges that it and its employees and agents may, in the course of performing their responsibilities under the Contract, be exposed to or acquire information that is confidential to Owner. Any and all information that Owner provides to Consultant or its employees or agents in the performance of the Contract that Owner designates as confidential (either on the document itself or through related correspondence), as well as all reports and other documents and materials (including software) that result from Consultant’s use of such information and any other Work Product that Owner designates as confidential, is deemed to be confidential information of Owner (“Confidential Information”).

Confidential Information does not include information that (i) is or becomes (other than by disclosure by Consultant) publicly known; (ii) is furnished by Owner to others without restrictions similar to those imposed by the Contract; (iii) is rightfully in Consultant’s possession without the obligation of nondisclosure prior to the time of its disclosure under the Contract; (iv) is obtained from a source other than Owner without the obligation of confidentiality, (v) is disclosed with the written consent of Owner, or; (vi) is independently developed by employees or agents of Consultant who can be shown to have had no access to the Confidential Information.

(b) Non-Disclosure. Consultant agrees to hold Confidential Information in strict confidence, using at least the same degree of care that Consultant uses in maintaining the confidentiality of its own confidential information, and shall not, without Owner’s prior written consent, copy, reproduce, sell, assign, license, market, transfer or otherwise dispose of, give, or disclose Confidential Information to third parties, or use Confidential Information for any purposes whatsoever, other than the provision of Services to Owner hereunder. Consultant shall advise each of its employees and agents of their obligations to keep Confidential Information confidential. Consultant shall use reasonable efforts to assist Owner in identifying and preventing any unauthorized use or disclosure of any Confidential Information. Consultant shall advise Owner immediately if Consultant learns or has reason to believe that any person who has had access to Confidential Information has violated or intends to violate the terms of this Section 7(b), and Consultant shall, at its expense, cooperate with Owner in seeking injunctive or other equitable relief in the name of Owner against any such person. Consultant agrees that, except as directed by Owner, Consultant will not at any time during or after the term of the Contract disclose, directly or indirectly, any Confidential Information to any person, except in accordance with the Contract, and that upon termination of the Contract or at Owner’s request, Consultant shall turn over to Owner all documents, papers, and other matter in Consultant's possession that embody Confidential Information. In the event Consultant is required to disclose Confidential Information pursuant to a subpoena or other legal process, Consultant shall notify Owner of such subpoena or other legal process, provide Owner with copies of any subpoena, other legal process and any other written materials supporting the subpoena or other legal process, and otherwise cooperate with Owner in the event Owner decides to oppose the disclosure of the Confidential Information.

In the event Owner decides not to oppose such subpoena or other legal process or Owner’s decision to oppose the subpoena or legal process has not been successful, Consultant shall be excused from the confidentiality provisions of this Section to the extent necessary to meet the requirements of the subpoena or other legal process controlling the required disclosure.

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

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

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

8. Indemnity.

(a) Claims for Other Than Professional Liability. Consultant shall indemnify, defend, save, and hold harmless the State of Oregon, its agencies, their officers, agents and employees from any and all claims, suits, actions, losses, liabilities, damages, costs and expenses, including attorney fees, of whatsoever nature, resulting from or arising out of the acts or omissions of Consultant or its subcontractors, or their respective agents or employees, under the Contract.

(b) Claims for Professional Liability. Consultant shall indemnify, defend, save, and hold harmless the State of Oregon, its agencies, their officers, agents and employees from any and all claims, suits, actions, losses, liabilities, damages, costs and expenses, including attorney fees, arising out of the professionally negligent acts, errors or omissions of Consultant or its subcontractors, or their respective agents or employees, in the performance of Consultant’s professional services under the Contract.

(c) Indemnity for Infringement Claims. Without limiting the generality of Section 8(a) or 8(b), Consultant expressly agrees to indemnify, defend, save and hold harmless the State of Oregon, and its agencies, subdivisions, officers, directors, agents, and employees from any and all claims, suits, actions, losses, liabilities, damages, costs and expenses, including attorney fees, arising out of or relating to any claims that Consultant’s Services, the Work Product or any other tangible or intangible items delivered to Owner by Consultant that may be the subject of protection under any state or federal intellectual property law or doctrine, or Owner’s use thereof, infringes any patent, copyright, trade secret, trademark, trade dress, mask work, utility design, or other proprietary right of any third party; provided, that state shall provide Consultant with prompt written notice of any infringement claim. Provided, however, Consultant shall not be obligated to indemnify, defend, save and hold harmless the State and Owner under this Section 8(c), based solely on the following: Consultant’s compliance with Owner specifications or requirements, including, but not limited to the required use of tangible or intangible items provided by Owner.

(d) Defense Qualification. Notwithstanding Consultant’s foregoing defense obligations, neither Consultant nor any attorney engaged by Consultant shall defend any claim in the name of the State of Oregon or any agency of the State of Oregon, nor purport to act as legal representative of the State of Oregon or any of its agencies, without the prior written consent of the Oregon Attorney General. The State of Oregon may, at any time at its election, assume its own defense and settlement in the event that it determines that Consultant is prohibited from defending the State of Oregon, or that Consultant is not adequately defending the State of Oregon's interests, or that an important governmental principle is at issue or that it is in the best interests of the State of Oregon to do so. The State of Oregon reserves all rights to pursue any claims it may have against Consultant if the State of Oregon elects to assume its own defense.

(e) Owner’s Acts or Omissions. This Section does not include indemnification by Consultant of the State of Oregon or Owner or their officers, agents, and employees, for the acts or omissions of the State of Oregon, Owner or their officers, agents, and employees, whether within the scope of the Contract or otherwise.

9. Insurance. Consultant shall maintain in effect for the duration of this Price Agreement, or any other periods required herein, the insurance set forth in this Section. Additionally, there may be Additional Insurance Requirements that are project or WOC-specific, which will be included in Exhibit C to a Work Order Contract executed pursuant to this Price Agreement.

(a) Required Insurance. Consultant shall maintain the required insurance in full force and at its own expense throughout the duration of this Price Agreement, and any additional insurance required in Exhibit C to any WOC executed under this Price Agreement, including any extended reporting period or continuous claims made coverage requirements, and all warranty periods that apply. All required insurance shall be obtained 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 Owner. All coverage shall be primary and non-contributory with any other insurance and self-insurance with the exception of Professional Liability and Workers’ Compensation. Consultant shall pay for all deductibles, self-insured retention, and self-insurance, if any.

If Consultant maintains broader coverage and/or higher limits than the minimums shown herein, the Owner shall be entitled to the broader coverage and/or higher limits maintained by Consultant.

(b) Workers’ Compensation and Employers’ Liability. All employers, including Consultant, that employ subject workers, as defined in ORS 656.027, shall comply with ORS 656.017 and provide Workers' Compensation Insurance coverage for those workers, unless they meet the requirement for an exemption under ORS 656.126(2). If Consultant is a subject employer, as defined in ORS 656.023, Consultant shall also obtain Employers' Liability Insurance coverage with limits not less than $1,000,000.00 each accident.

If Consultant is an employer subject to any other state’s workers’ compensation law, Consultant shall provide Workers’ Compensation Insurance for its employees as required by applicable workers’ compensation laws including Employers’ Liability Insurance coverage with limits not less than $2,000,000.00.

As applicable, Consultant shall obtain coverage to discharge all responsibilities and liabilities that arise out of or relate to the Jones Act with limits of no less than $5,000,000.00 and/or the Longshoremen’s and Harbor Workers’ Compensation Act. Consultant shall require and ensure that each of its subconsultants complies with these requirements.

(c) Commercial General Liability. Commercial General Liability Insurance covering bodily injury and property damage written on an ISO CG 00 01 10 01 (or equivalent). This insurance shall include personal and advertising injury liability, products and completed operations, contractual liability coverage for the indemnity provided under this Contract and shall 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 $1,000,000.00 per occurrence and not less than $2,000,000.00 annual aggregate.

(d) Automobile Liability. Automobile Liability Insurance covering Consultant’s business use including coverage for all owned, non-owned, or hired vehicles with a combined single limit of not less than $1,000,00.00 for bodily injury and property damage. This coverage may be written in combination with the Commercial General Liability Insurance (with separate limits for Commercial General Liability and Automobile Liability).

(e) Professional Liability. Consultant shall provide Professional Liability Insurance covering any damages caused by an error, omission or any negligent acts related to the work, including design services, to be provided under this Contract by the Consultant and Consultant’s subconsultants, agents, officers or employees in an amount not less than $$5,000.000.00 per claim and not less than $5,000,000.00 annual aggregate.

If coverage is provided on a claims made basis, the retroactive date of the policy must be prior to the inception of the work and an extended reporting period equal to the statute of ultimate repose shall be included in the Professional Liability Insurance coverage.

(f) Excess/Umbrella Insurance. Excess/umbrella Insurance coverage in the sum of $5,000,000.00 shall be provided and will apply over all liability policies, without exception, including but not limited to Commercial General Liability, Automobile Liability, and Employers' Liability coverage. The amounts of insurance for the insurance required under this Contract, including this Excess/Umbrella insurance requirement, may be met by the Consultant obtaining coverage for the limits specified under each type of required insurance or by any combination of underlying, Excess and Umbrella limits so long as the total amount of insurance is not less than the limits specified for each type of required insurance added to the limit for this Excess/Umbrella insurance requirement.

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.

(g) Waiver of Subrogation. Consultant grants to Owner a waiver of any right to subrogation that the Consultant or its insurers may acquire against the Owner by virtue of the payment of any loss under any Workers’ Compensation, Commercial General Liability, Automobile Liability and Excess/Umbrella insurance required under this Contract. Consultant agrees to obtain from their insurer(s) any endorsements necessary to affect this waiver of subrogation.

(h) Additional Insured. All liability insurance, except for Workers’ Compensation and Professional Liability (if applicable), and Pollution Liability required under this Contract must include the State of Oregon, its officers, employees, and agents as Additional Insureds, including additional insured status with respect to liability arising out of ongoing operations and completed operations, but only with respect to Consultant's activities to be performed under this Contract. Coverage shall be primary and non-contributory with any other insurance and self-insurance.

For Commercial General Liability, the Additional Insured endorsement with respect to liability arising out of Consultant’s ongoing operations must be on or least as broad as ISO Form CG 20 10 07 04 or equivalent and the Additional Insured endorsement with respect to completed operations must be on or at least as broad as ISO form CG 20 37 07 04 or equivalent.

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

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

(ii) Owner or Consultant’s termination of this Contract, or

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

(j) Certificate(s) and Proof of Insurance. Consultant shall provide to Owner Certificate(s) of Insurance for all required insurance before performing any Services required under this Contract. The Certificate(s) of Insurance must include all required endorsements or copies of the applicable policy language affecting coverage required by this Contract. The Certificate(s) of Insurance must list the State of Oregon, its officers, employees, and agents as a Certificate holder and as an endorsed Additional Insured. The Certificate(s) of Insurance must also verify a waiver of subrogation provision in favor of the Owner is included in the Workers’ Compensation, Commercial General Liability, Automobile Liability, and Excess/Umbrella policies. If a Pollution Liability coverage requirement includes an Asbestos Liability and/or Lead Liability endorsement(s), copies of the endorsement(s) must be provided with the Certificate(s) of Insurance. If Consultant is transporting any hazardous material under this Contract, copies of endorsements CA 99 48 or equivalent and MCS-90 (if applicable) must be included.

If excess/umbrella insurance is used to meet the minimum insurance requirement, the Certificate of Insurance must include a list of all policies that fall under the excess/umbrella insurance. As proof of insurance, Owner has the right to request copies of insurance policies and endorsements relating to the insurance requirements in this Contract.

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

(l) Insurance Requirement Review. Consultant agrees to periodic review of insurance requirements by Owner under this agreement and to provide updated requirements as mutually agreed upon by Consultant and Owner.

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

10. Termination.

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

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

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

(i) Owner fails to receive appropriations, limitations or other expenditure authority sufficient to allow Owner, in the exercise of its reasonable administrative discretion, to continue to make payments for Consultant’s Services;

(ii) Federal, State or local laws, regulations or guidelines are modified or interpreted in such a way that either the Services under the Contract are prohibited, or Owner is prohibited from paying for such Services from the planned funding source;

(iii) Consultant no longer holds any license or certificate that is required to perform the Services;

(iv) Consultant has liquidated and delinquent debt owed to the State of Oregon or any department or agency of the State; or

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

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

(e) Consultant’s Right to Terminate for Cause.

(i) Consultant may terminate this Contract if Owner…