Attachment_A_Sample_Price_Agreement_for_Services.docx

Solicitation S-66000-00013715 – Oregon SeaSketch Tool Maintenance and Technical Development AttA – Sample Price Agreement for Services Oregon Sea Sketch Maintenance and Technical Development Services Price Agreement #_________

This Price Agreement (“PA”) is between the State of Oregon (“State”) acting by and through its Department of Land Conservation and Development (“DLCD” or “Agency”), and _________________, (“Contractor” or “Consultant”) for Oregon SeaSketch maintenance and technical development services.

Recitals

A. DLCD desires to engage Contractor through this PA for certain Oregon SeaSketch maintenance and technical development services, as described on Exhibit B (“Services”).

B. On ____________, DLCD issued RFP #S-66000-00013715, Oregon SeaSketch Maintenance and Technical Development to directly award a single Price Agreement for the Services, described on Exhibit B.

C. Contractor desires to perform the Services for DLCD, pursuant to the terms of this Price Agreement and individual Work Order Contracts (“WOCs”) issued pursuant to this Price Agreement.

Agreement

DLCD and Contractor agree as follows:

1. Purpose of PA. This PA establishes terms and conditions applicable to Contractor and DLCD in connection with the Services, including but not limited to:

1.1. the form of the ordering instruments to be used by DLCD and Contractor to enter contracts Services, including Work Order Contracts (“WOCs”) or other ordering instruments (collectively, “Contracts”);

1.2. the terms and conditions applicable to Contracts;

1.3. the process through which Contracts will be created; and

1.4. the pricing applicable to Contracts.

From time to time, DLCD and Contractor may enter into binding and enforceable contracts for Services only by execution of Contracts, substantially in the form attached hereto as Exhibit C. DLCD may issue WOCs under this PA for a total not to exceed compensation of $250,000.00.

Each WOC will specify the Services to be performed, the associated deliverables to be delivered, and will incorporate the terms and conditions in Exhibit A as applicable to the WOC.

2. Effective Date and Term. This PA is effective on the later of (i) ______, or (ii) the date that it has been executed by all Parties and has been approved as required by applicable law (“Effective Date”). Unless terminated or extended, this PA expires on ___________________ (“PA term”). DLCD and Contractor may extend this PA only by written agreement. PA expiration or termination does not extinguish or prejudice DLCD’ right to enforce this PA with respect to any Contractor breach or any default or defect in Contractor performance that has not been cured. The total term of this PA shall not exceed ten (10) years.

3. PA Documents. This PA includes the PA and its exhibits which are attached and incorporated by reference. If a conflict, inconsistency or ambiguity exists among any portion of this PA and any other documents, then the issue must be interpreted in the following order of precedence:

3.1. This PA less all exhibits;

3.2. Exhibit A, Contract Terms;

3.3. Exhibit B, Description of Services, Pricing; and

3.6. Exhibit C, Work Order Contract Form.

4. Firm Offer Established; Pricing Changes.

4.1. Firm Offer Established. This PA constitutes a firm offer by Contractor regardless of whether any Contract for the Services is executed. This PA is enforceable as a firm offer pursuant to ORS 279B.140 for the PA term specified in section 2, and all pricing in Exhibit B is valid until the PA expires or is terminated, unless the pricing is changed according to subsection 4.2. Notwithstanding ORS 72.2050, obligations under this PA are not revocable by Contractor.

4.2. Pricing Changes. Contractor shall keep pricing specified in Exhibit B fixed for at least the first twenty-four (24) full months of this PA. Thereafter, DLCD and Contractor may adjust pricing no more than once annually by PA amendment. Contractor shall submit all pricing increase requests to DLCD in writing and provide substantiating evidence that each request is based on demonstrable market changes impacting the cost of the Services. Pricing changes will apply to Contracts and amendments to Contracts entered on and after the effective date of the pricing change.

5. Non-exclusive PA; Contractor Selection.

5.1. Non-exclusivity. This PA is not exclusive. DLCD retains the right to contract for Services through any selection process authorized by law, or to perform the Services itself. Neither DLCD nor DLCD guarantees that any specific number of contracts will be entered or that any specific amount of Services will be required.

6. Signed Contract Required for Services.

6.1. Contract Form. DLCD must use a WOC form substantially similar to the form attached as Exhibit C.

6.2. Contract Negotiation. Prior to signing a Contract, DLCD and Contractor may negotiate the Services to be included in the Contract from the Description of Services set forth in Exhibit B, including but not limited to the cost of the Services. DLCD and Contractor may negotiate a fixed price or maximum amount payable for Services under the Contract based on the pricing specified in Exhibit B. Contractor’s pricing under any resulting Contract shall not exceed the pricing specified in Exhibit B.

6.3. Contract Content. The Contract must be in a form substantially similar to the form attached as Exhibit C and include all of the following:

6.3.1. Language stating that the Contract is submitted under this PA and the PA number;

6.3.2. Language incorporating all Contract terms and conditions of Exhibit A into the Contract, which may be modified by DLCD only for consistency with applicable law;

6.3.3. Clear description of the required Services and associated deliverables;

6.3.4. Rates and maximum amount payable for Services (including travel and other expenses);

6.3.5. Required delivery schedule for Services;

6.3.6. Invoicing address; and

6.3.7. DLCD’s authorized representative and contact information for that individual, including telephone number and e-mail address.

6.4. Contract Rejection. Contractor shall reject Contracts that do not comply with this section 6.

6.5. Contract Creation. The fully executed Contract creates a legally binding Contract between DLCD and Contractor that is enforceable according to its terms and is independent of all other executed Contracts. The Contract consists only of the terms specified for Contracts in this PA and no other terms, regardless of source. DLCD and Contractor are the parties to each Contract.

6.6. Agency’s Liability under Contracts. Contractor shall look solely to DLCD for any rights and remedies Contractor may have at law or in equity arising under any Contract between Contractor and DLCD. Contractor acknowledges and agrees that DLCD is not liable to Contractor under any Contract entered into between Contractor and DLCD.

7. Payment. DLCD will pay Contractor for accepted deliverables according to the payment methodology specified in the applicable Contract. DLCD will pay Contractor only for deliverables that Contractor has delivered and completed and DLCD has accepted. DLCD will not pay or reimburse any expenses incurred by Contractor for any Services except as authorized in the Statement of Work or elsewhere in the Contract. Any such authorized travel expenses must comply with the Oregon Travel Policy available at: http://www.oregon.gov/das/cfo/sars/policies/oam/40.10.00.pdf

8. Services; Pricing. Attached hereto as Exhibit B is a list of Services and applicable price available pursuant to this PA.

9. Reserved.

10. Representations and Warranties: Contractor represents and warrants that:

10.1. Contractor is not an “officer,” “employee,” or “agent” of DLCD, as those terms are used in ORS 30.265;

10.2. Contractor fully understands and will perform its obligations under this PA;

10.3. Contractor is qualified to do business in the State of Oregon and will remain qualified throughout the PA term;

10.4. Contractor is not in arrears in the payment of any monies due and owing the State of Oregon, or any department or agency thereof, including but not limited to the payment of taxes and employee benefits, and will not become so during the PA;

10.5. Contractor has no undisclosed liquidated and delinquent debt owed to the State or any agency, board, commission, department or division of the State.

10.6. Contractor will comply with all federal, state, and local laws, ordinances, rules, regulations, and executive orders, as may be adopted or modified from time to time and as applicable to its performance under this PA;

10.7. Contractor is not in violation of, charged with nor, to the best of Contractor’s knowledge, under any investigation with respect to violation of, any provision of any federal, state or local law, ordinance or regulation or any other requirement or order of any governmental or regulatory body or court or arbitrator applicable to provision of Services, and Contractor’s provision of Services shall not violate any such law, ordinance, regulation or order;

10.8. Contractor’s performance under this PA to the best of Contractor's knowledge creates no potential or actual conflict of interest, as defined by ORS 244, for either Contractor or any Contractor personnel that will perform Services under this PA;

10.9. Contractor represents and warrants that the personnel providing services under this PA are employees of Contractor; that Contractor withholds applicable income taxes from the pay of its employees; that Contractor pays workers’ compensation insurance premiums arising from the employment of its employees under this PA; that Contractor makes all other applicable tax and related payments arising from that employment (including without limitation social security tax payments); and that Contractor provides employee benefits to its employees, including without limitation health insurance benefits, vacation benefits, and retirement benefits;

10.10. Contractor (to the best of Contractor’s knowledge), for a period of no fewer than six (6) calendar years preceding the Effective Date, faithfully has complied with:

10.10.1. 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;

10.10.2. Any tax provisions imposed by a political subdivision of this State that applied to Contractor, to Contractor’s property, operations, receipts, or income, or to Contractor’s performance of or compensation for any work performed by Contractor;

10.10.3. Any tax provisions imposed by a political subdivision of this state that applied to Contractor, or to goods, services, or property, whether tangible or intangible, provided by Contractor; and

10.10.4. Any rules, regulations, charter provisions, or ordinances that implemented or enforced any of the foregoing tax laws or provisions.

10.11. Contractor possesses and will maintain at its own expense all required licenses, certifications and permits necessary to deliver Services under this PA and all Contracts;

10.12. Contractor has the power and authority to enter into and perform this PA and all Contracts;

10.13. This PA, when executed and delivered, is a valid and binding obligation of Contractor enforceable according to its terms;

10.14. Contractor has the skill and knowledge possessed by well-informed members of its trade or profession and Contractor will apply that skill and knowledge with care and diligence so Contractor and Contractor’s employees and any authorized subcontractors provide Services described in this PA in accordance with the highest standards prevalent in the industry or business most closely involved in providing Services and Contractor shall, at all times during the term of this PA and any Contract, be qualified, professionally competent, and duly licensed to provide the Products and perform Services;

10.15. The Products will materially conform to acceptance criteria set forth in the PA and the Contract, including the Statement of Work and any Documentation provided by Contractor, and are free from error or defect that materially impairs their use, and be free from material defects in materials, workmanship, or design;

10.16. Except as otherwise provided in this PA or a Contract, Contractor shall transfer all Services to DLCD 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;

10.17. Services are free of what are commonly defined as viruses, backdoors, worms, spyware, malware and other malicious code that will hamper performance of the software, collect unlawful personally identifiable information on users, or prevent the software from performing as required under the terms and conditions of this PA or a Contract. Notwithstanding the foregoing, this representation and warranty does not include a disabling device that limits, suspends or ends use of Services expressly permitted by the terms and conditions by the license under which it was provided: and

10.18. When used as authorized by this PA or any Contract, no Work Product infringes nor will DLCD’s use, duplication or transfer of the Work Product infringe any copyright, patent, trade secret or other proprietary right of any third party.

The warranties set forth in this section 10 are in addition to, and not in lieu of, any other warranties provided in this PA or in any Contract.

11. Contractor Default. Contractor is in default of this PA if:

11.1. Contractor fails to honor pricing at least at or lower than the pricing specified in Exhibit B; or

11.2. Contractor has undisclosed liquidated and delinquent debt owed to the State of Oregon or any agency, board, commission, department or division of the State; or

11.3. Contractor violates or fails to perform any covenant, representation, warranty, obligation or certification under this PA.

Before Contractor can be found in default of this PA, DLCD shall first deliver a notice of default to Contractor. The notice must describe the specific nature of the default, cite the specific provisions of this PA that have been violated, indicate whether the default can be cured, and specify the time period in which the default must be cured, if cure is permitted.

12. Remedies for Default. If Contractor is in default under section 11, DLCD may, at its option, pursue any or all remedies available to it under this PA and at law or in equity, including without limitation, termination of this PA pursuant to section 13 or pursuing a claim for damages, or undertaking collection by administrative offset, or garnishment if applicable, of all monies due for Services and Deliverables to recover liquidated and delinquent debt owed to the State of Oregon or any department or agency of the State. (offsets or garnishment may be initiated after the Contractor has been given notice if required by law), or any or all.

13. Termination.

13.1. Mutual Termination. The parties may terminate this PA upon the date specified in written agreement.

13.2. DLCD’ Right to Terminate. DLCD may, at its sole discretion, terminate this PA as follows:

13.2.1. DLCD may terminate this PA upon thirty (30) calendar days’ prior written notice to Contractor or any later date as specified in the written notice; or

13.2.2. DLCD may terminate this PA immediately if federal or state laws, rules, regulations, executive orders, or guidelines are modified in such a way that would prohibit any party’s performance under this PA.

13.3. DLCD’ Right to Terminate for Cause. In addition to any other rights and remedies DLCD may have under this PA, DLCD may terminate this PA, in whole or in part, immediately upon written notice to Contractor of Contractor’s default under section 11.

13.4. Effect of PA Termination or Expiration. Upon termination or expiration of this PA, Contractor shall continue to provide Services and meet its obligations under all effective Contracts issued prior to PA termination or expiration, unless such Contract is otherwise terminated pursuant to its terms. The termination or expiration of this PA will be without prejudice to the rights of the parties accrued up to the date of such termination or expiration.

14. Contractor’s Compliance with Tax Laws.

14.1. Contractor must, throughout the term of this PA and any extensions, comply with all tax laws of this state and all applicable tax laws of any political subdivision of this state. For the purposes of this section, “tax laws” includes all the provisions described in subsection 10.10.1 through 10.10.4 of this PA.

Any violation of this subsection 14.1 constitutes a material breach of this PA. Further, any violation of Contractor’s warranty in subsection 10.10 of this PA, that Contractor has complied with the tax laws of this state and the applicable tax laws of any political subdivision of this state, also constitutes a material breach of this PA. Any violation shall entitle DLCD to terminate this PA, to pursue and recover any and all damages that arise from the breach and the termination of this PA, and to pursue any or all of the remedies available under this PA, at law, or in equity, including but not limited to:

14.1. Termination of this PA, in whole or in part;

14.2. Exercise of the right of setoff, or garnishment, if applicable, and withholding of amounts otherwise due and owing to Contractor, in an amount equal to State’s setoff right, without penalty; and

14.3. Initiation of an action or proceeding for damages, specific performance, declaratory or injunctive relief. DLCD shall be entitled to recover any and all damages suffered as the result of Contractor's breach of this PA.

These remedies are cumulative to the extent the remedies are not inconsistent, and DLCD may pursue any remedy or remedies singly, collectively, successively, or in any order whatsoever.

15. Indemnity. Contractor shall defend, save, hold harmless, and indemnify the State of Oregon, DLCD, and their officers, employees and agents from and against all third party claims, suits, actions, losses, damages, liabilities, statutory penalties, costs and expenses of any nature whatsoever, including personal injury, death, damage to real property and damage to tangible or intangible personal property resulting from, arising out of, or relating to the intentional, reckless or negligent acts or omissions of Contractor or its officers, employees, subcontractors, or agents under this PA or any Contract including:

15.1. Any claim that Contractor, a subcontractor, or Contractor’s staff or a subcontractor’s staff are employees of the State or DLCD for any reason; and

15.2 Any claim against the State or DLCD, which, if true, would constitute a breach by Contractor of any of the representations, warranties, or covenants set forth in this PA.

Without limiting the generality of the foregoing, Contractor will have no obligation to indemnify the State of Oregon or DLCD from and against any claims, suits, actions, losses, damages, liabilities, costs and expenses attributable solely to the acts or omissions of DLCD or its officers, employees or agents.

16. Governing Law. This PA is governed by and construed according to the laws of the State of Oregon without regard to principles of conflict of laws.

17. Venue and Consent to Jurisdiction. Any claim, action, suit, or proceeding (collectively, “Claim”) between DLCD and Contractor that arises from or relates to this PA must be brought and conducted solely and exclusively within the Circuit Court of Marion County for the State of Oregon; provided, however, if a Claim must be brought in a federal forum, then it must be brought and conducted solely and exclusively within the United States District Court for the District of Oregon. CONTRACTOR BY EXECUTION OF THIS CONTRACT HEREBY CONSENTS TO THE IN PERSONAM JURISDICTION OF THE COURTS REFERENCED IN THIS SECTION 17. In no event may this section be construed as (i) a waiver by the State of Oregon of any form of defense or immunity, whether sovereign immunity, governmental immunity, immunity based on the eleventh amendment to the Constitution of the United States or otherwise, from any claim, or (ii) consent by the State of Oregon to the jurisdiction of any court.

18. PA Contract Administrators. The PA Contract Administrators for DLCD and Contractor are the individuals identified in this section 18 or any other individual identified in writing as the PA Administrator to the other party.

DLCD Contract Administrator is:

First, Last Title 635 Capitol Street NE, Suite 150 Salem, OR 97301 Phone: (XXX) XXX-XXXX E-Mail: email@DLCD.oregon.gov Contractor’s Contract Administrator is:

First, Last Title Address Line 1 Address Line 2 Phone: (XXX) XXX-XXXX E-Mail: email@email.com

19. Amendment. This PA may be amended, modified, or supplemented only by a written amendment signed by DLCD and Contractor. Any amendment that provides for additional goods or other services may only provide for Services, goods or services directly related to the scope of Services, and no amendment will be effective until all requisite signatures and approvals are obtained. Either DLCD or Contractor may request a change to this PA, including all Exhibits hereto, by submitting a written proposal describing the desired change to the other party.

20. Nondiscrimination in Employment. Contractor certifies that Contractor has a written policy and practice that meets the requirements, described in ORS 279A.112 of preventing sexual harassment, sexual assault, and discrimination against employees who are members of a protected class. Contractor agrees, as a material term of the PA, to maintain the policy and practice in force during the entire PA term.

21. Pay Equity. As required by ORS 279B.235, Contractor shall comply with ORS 652.220 and not unlawfully discriminate against any of its employees in the payment of wages or other compensation for work of comparable character on the basis of an employee’s membership in a protected class. “Protected class” means a group of persons distinguished by race, color, religion, sex, sexual orientation, national origin, marital status, veteran status, disability, or age. Contractor’s compliance with this section is a material term of this PA, and Contractor’s failure to comply constitutes a breach entitling Agency to terminate this PA or any Contract for cause.

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

22. Oregon False Claims Act. Contractor acknowledges the Oregon False Claims Act, ORS 180.750 to 180.785, applies to any action by Contractor pertaining to this PA and any Contract, including the procurement process relating to this PA, which constitutes a "claim" (as defined by ORS 180.750(1)). By its execution of this PA, Contractor certifies the truthfulness, completeness, and accuracy of any statement or claim it has made, it makes, it may make or causes to be made that pertains to this PA or any Contract. In addition to other penalties that may be applicable, Contractor further acknowledges that if it makes, or causes to be made, a false claim or performs a prohibited act under the Oregon False Claims Act, the Oregon Attorney General may enforce the liabilities and penalties provided by the Oregon False Claims Act against Contractor. Contractor understands and agrees that any remedy that may be available under the Oregon False Claims Act is in addition to any other remedy available to the State or Agency under this PA or any Contract or any other provision of law.

24. Integration. This PA and attached Exhibits constitute the entire agreement between the parties on the subject matter hereof. There are no understandings, agreements or representations, oral or written, not specified herein regarding this PA.

Authorized Signatures:

Contractor:

By: ____________________________________________

Title: __________________________________________ Date: ________________

The State of Oregon acting by and through its Department of Land Conservation and Development

By: ____________________________________________

Title:___________________________________________ Date: ________________

Approved pursuant to ORS 291.047

Oregon Department of Justice

EXHIBIT A

to Price Agreement #_____

CONTRACT TERMS AND CONDITIONS

These Contract Terms and Conditions apply to and are incorporated into all Contracts issued under this PA.

1. DEFINITIONS. In addition to any other terms defined elsewhere in this Contract, the following defined terms apply:

1.1. “Business Day” means any day Monday through Friday, 8:00 a.m. to 5:00 p.m., Pacific Time, excluding State of Oregon holidays and business closure days.

1.2. “Calendar Day” means any day on the Western calendar.

1.3. “Contract” means any Work Order Contract or other agreed upon ordering instrument issued under this PA.

1.4. “Deliverables” means all items that Contractor is required to provide to DLCD under a Contract as part of the Services, including Work Product.

1.5. “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 DLCD pursuant to the Services.

2. Non-Exclusive Contract. Contractor acknowledges and agrees that by executing this Contract, DLCD is not granting to Contractor the exclusive right to perform the Services, or any other services, for DLCD. Furthermore, DLCD reserves the right to:

2.1. Contract with other entities to provide DLCD with the services that are the same or similar to those provided to Contractor under this Contract; and

2.2. Perform any or all of the Services itself.

3. Compensation. Following Contractor’s delivery or completion, and DLCD’s acceptance of the Deliverables, DLCD will pay Contractor as specified in this Contract, based on the pricing established in PA Exhibit B. Contractor represents that all pricing for Services under this Contract is equal to or better than the pricing specified in the PA.

4. Funds Available and Authorized. Contractor will not be compensated for Services performed under this Contract by any other agency or department of the State of Oregon other than DLCD. DLCD believes it has sufficient funds currently available and authorized for expenditure to make payments under this Contract within DLCD’s biennial appropriation or limitation. Contractor understands and agrees that DLCD’s payments under this Contract are contingent on DLCD receiving appropriations, limitations, or other expenditure authority sufficient to allow DLCD, in the exercise of its reasonable administrative discretion, to continue to make payments under this Contract.

5. Invoicing and Payment

5.1. Invoices. Contractor shall submit invoices for accepted Services or Deliverables according to the payment schedule as set forth in this Contract. Contractor shall submit invoices to DLCD as designated in this Contract. Contractor shall include the PA number and applicable Contract number on all invoices. Contractor also shall include a description of all Services performed, the Deliverables delivered, applicable pricing, total amount invoiced and the address for payment.

5.2. Payment. DLCD shall pay all undisputed amounts within thirty (30) days of receipt of each invoice determined to be correct following DLCD’s review under section 5.3. Contractor may assess late payment charges only to the extent permitted by ORS 293.462.

5.3. Invoice Review / Dispute Process. DLCD will review each invoice and will either approve payment of the amount invoiced or notify Contractor of any errors or disputed charges. DLCD may withhold payment of any amounts that are disputed.

If an error or dispute arises concerning the amount charged in an invoice, DLCD will notify Contractor of the disputed charge. Upon notification of dispute, Contractor shall submit to DLCD all documentation DLCD requires to substantiate the amount charged.

DLCD, in its sole discretion, will determine if the supporting documentation provides sufficient substantiation for the disputed charges. If DLCD determines that the supporting documentation is sufficient, DLCD will notify Contractor and pay Contractor the amount charged in the invoice. If DLCD determines the supporting documentation supports payment of an amount less than originally invoiced, DLCD will notify Contractor of the amount DLCD believes is due under the invoice, and DLCD will pay the invoice in that lesser amount.

6. Performance, Delivery and Acceptance.

6.1. Responsibilities of Contractor. Contractor shall perform Services in accordance with the standards and methodologies set forth in the Statement of Work and this Contract. Contractor shall cooperate with DLCD and its designated third parties by providing access and information on the Products’ architecture, design, operating environment, interfaces and operating parameters as necessary.

6.2. Delivery and Review of Deliverables. Unless otherwise agreed, within ten (10) Business Days following Contractor’s delivery of Services or Deliverables, or both, DLCD will review the Services and Deliverables to determine whether the Services and Deliverables meet the Contract requirements. If DLCD determines that the Services and Deliverables meet the Contract requirements, DLCD will notify Contractor of DLCD’s acceptance.

If DLCD determines that the Services or Deliverables, or both, do not meet the Contract requirements, DLCD will notify Contractor of DLCD’s rejection. Within ten (10) Business Days following Contractor’s receipt of DLCD’s rejection notice, Contractor shall revise and redeliver to DLCD the rejected Services or Deliverables at Contractor’s sole expense to ensure that the Services or Deliverables meet the Contract requirements as determined by DLCD. DLCD will thereafter review the revised Services or Deliverables and notify Contractor of DLCD’s acceptance or rejection within a ten (10) Business Days following DLCD’s receipt of Contractor’s revised Services or Deliverables. This process is an iterative process.

Contractor’s failure to deliver Services or Deliverables that meet the specifications and performance standards after DLCD’s second review may constitute a default by Contractor, if DLCD chooses not to allow Contractor any further attempts to revise and redeliver the Services or Deliverables, or both. Upon such default, Contractor shall refund to DLCD all amounts paid by DLCD for the Deliverables or the Services related to such Deliverables. All such refunds are in addition to, and not in lieu of, any other remedies DLCD may have for Contractor’s default.

6.3. Business Continuity Management and Disaster Recovery. Contractor shall deliver, maintain, and upgrade as necessary, Business Continuity Management and Disaster Recovery Plan and Procedures for the Services, acceptable to DLCD. In the event of a disaster, Contractor shall comply with the provisions of and deliver the Service according to the Business Continuity Management and Disaster Recovery Plan and Procedures.

6.4. Performance Metrics and Service Level Guarantees. In its provision of the Services, Contractor shall meet the performance metrics and service level guarantees set forth in the Contract. Contractor shall provide, maintain, and upgrade any hardware and related equipment, and software provided by Contractor and required for delivery and operation of the Services. If Contractor fails to meet a performance standard, Contractor shall (i) investigate, assemble and preserve pertinent information with respect to, and report on the causes of, the failure, including performing a root cause analysis of the failure; (ii) advise DLCD, as and to the extent requested by DLCD, of the status of remedial efforts being undertaken with respect to such failure; (iii) minimize the impact of and correct the problem and begin meeting the performance standard; and (iv) take appropriate preventive measures so that the failure does not recur.

Contractor shall pay the damages or issue service credits as agreed to in this Contract if Contractor fails to provide the Services as and when required by this Contract or fails to meet the performance metrics and service level guarantees specified in this Contract. This section does not limit DLCD’s rights with respect to the events upon which DLCD may rely as a basis for termination of this Contract for cause.

6.5. Responsibilities of DLCD. If this Contract requires DLCD to provide any information or resources, and DLCD fails to provide the requisite quality or quantity of such resources or fails to provide such resources in a timely manner for a period that does not exceed ten (10) Calendar Days, Contractor’s sole remedy is an extension of the applicable delivery dates corresponding to the delay. If DLCD’s failure to provide such resources exceeds ten (10) Calendar Days, and Contractor can show to the reasonable satisfaction of DLCD, that DLCD’s failure has resulted in an unavoidable increase in the cost of the Services required for the Statement of Work then Contractor will be entitled to recover from DLCD the reasonable amount of such increased costs. Contractor's right to delay applicable delivery dates or recover for increased costs may be exercised only if Contractor provides DLCD with reasonable notice of DLCD’s failure and Contractor uses commercially reasonable efforts to perform notwithstanding DLCD's failure to perform.

7. Contractor’s Personnel.

7.1. Key Persons. Contractor’s Key Persons are identified on PA Exhibit B or Contract, Attachment 1. The hourly rates applicable to each Key Person are specified in PA Exhibit B. Contractor acknowledges and agrees that a significant reason DLCD selected Contractor and is entering into this Contract is because of the special qualifications of each Key Person. DLCD is engaging the expertise, experience, judgment, and personal attention of such Key Persons under this Contract. Neither Contractor nor any Key Person shall delegate performance of the duties and obligations of such Key Person under this Contract to any other employee, agent or subcontractor of Contractor unless DLCD provides prior written consent to such delegation. Contractor shall not reassign or transfer a Key Person to other duties or positions so that the Key Person is no longer available to provide DLCD with that Key Person’s services unless DLCD provides prior written consent to the reassignment or transfer, or the reassignment or transfer is required based on the termination of employment, illness, death, disability or other similar cause.

If Contractor requests DLCD’s consent to a delegation, reassignment, transfer or other replacement of a Key Person, DLCD may meet with the Key Person and review the qualifications of the proposed substitute personnel before providing its consent or rejecting such replacement. Any such replacement shall have substantially equivalent or better qualifications than the Key Person being replaced. Contractor shall not charge DLCD, and DLCD will not pay, for any replacement Key Person while that Key Person acquires the necessary skills and knowledge to continue the Services. Such period of non-charge will be agreed upon by the parties but will not extend for more than twenty-eight (28) Calendar Days. All replacement personnel approved by DLCD are deemed Key Persons for purposes of this Contract, and this Contract is deemed amended to include those Key Persons.

7.2. Subcontracts. Contractor shall not enter into any subcontracts for any of the Services required by this Contract without DLCD’s prior written consent. In addition to any other provisions DLCD may require, Contractor shall include in any permitted subcontracts under this Contract a requirement that the subcontractor be bound by sections 5, 6, 8, 9, 11, 12, 14, 17, 20, 29, and 30 of this Contract as if the subcontractor were the Contractor. DLCD’s consent to any subcontractor shall not relieve Contractor of any of its duties or obligations under this Contract.

7.3. Successors and Assigns. Contractor shall not assign or transfer any of its interest in this Contract without DLCD’s prior written consent. This Contract is binding upon and shall inure to the benefit of DLCD and Contractor, and their respective successors and permitted assigns.

7.4 Cooperation. Contractor understands and agrees that, as part of this Contract, Contractor may be required to work with other DLCD contractors who may be working on this or similar projects. DLCD and Contractor acknowledge and agree that this cooperation is essential to the mutual goal of both parties for accurate and valuable use by DLCD. Contractor shall create and maintain a cooperative working relationship between and among DLCD and other entities and their respective representatives involved in representing DLCD’s priorities at the federal and statewide levels, to further the interests of DLCD to result in the Services being successfully completed on time and within budget.

In the event of a conflict between contractors who must cooperate, contractors shall notify the DLCD’s contract administrator and abide by DLCD’s direction(s).

7.5 DLCD Facilities and Networks; Access and Security. DLCD shall permit Contractor and Contractor personnel access to DLCD facilities and networks, provided Contractor and Contractor personnel comply with all DLCD security and access policies, rules, procedures, and regulations for access to DLCD’s facilities and networks.

8. Confidentiality / Non-Disclosure.

8.1. Confidential Information. Each party acknowledges that it and its employees or agents may, in the course of performing its responsibilities under this Contract, be exposed to or acquire information that is confidential to the other party or the other party’s clients. Any and all information of any form obtained by one party or its employees or agents in the performance of this Contract is confidential information of the other party (“Confidential Information”). The parties shall treat any reports or other documents or items (including software) which result from the use of the Confidential Information by the recipient of such information with respect to confidentiality in the same manner as the Confidential Information. Confidential Information does not include information that (i) is or becomes (other than by disclosure by the party acquiring such information) publicly known or is contained in a publicly available document; (ii) is furnished by the party disclosing such information to others without restrictions similar to those imposed by this Contract; (iii) is rightfully in the receiving party’s possession without the obligation of nondisclosure prior to the time of its disclosure under this Contract; (iv) is obtained from a source other than the discloser without the obligation of confidentiality, (v) is disclosed with the written consent of the disclosing party, or; (vi) is independently developed by employees or agents of the receiving party who can be shown to have had no access to the Confidential Information.

8.2. Duties of Care. The recipient of Confidential Information shall hold Confidential Information in strict confidence, using at least the same degree of care that it uses in maintaining the confidentiality of its own Confidential Information, and the recipient shall not 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 required by law or otherwise as contemplated by this Contract or reasonably related thereto, including without limitation the use by DLCD contractors who need to access or use the Confidential Information for any valid business purpose, and to advise each of its employees and contractors of their obligations to keep Confidential Information confidential.

8.3. Prevention of Unauthorized Use or Disclosure. Each party shall use commercially reasonable efforts to assist the other in identifying and preventing any unauthorized use or disclosure of any Confidential Information. Without limitation of the foregoing, each party shall advise the other immediately in the event it 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 Contract and each party will at its expense cooperate with the other in seeking injunctive or other equitable relief in the name of the other against any such person.

8.4. Non-disclosure. Each party agrees that, except as provided in this Contract or directed by the other, it will not at any time during or after the term of this Contract disclose, directly or indirectly, any Confidential Information to any person, and that upon termination of this Contract each party will turn over to the other all documents, papers and other matter in its possession which embody Confidential Information.

8.5. NDAs and Background Checks. Contractor agrees to comply with all reasonable requests by DLCD to ensure the confidentiality and nondisclosure of DLCD’s Confidential Information, including without limitation (i) obtaining nondisclosure agreements from Contractor’s employees and agents who are performing Services and providing copies of such agreements to DLCD, (ii) performing criminal background checks on each of Contractor’s employees and agents who are performing Services, and providing a copy of the results to DLCD, and (iii) complying with DLCD’s access and security policies and procedures.

8.6. Public Records Laws. DLCD’s obligations of confidentiality, if any, are subject to the Oregon Public Records Laws, ORS 192.311 through ORS 192.478 and the Oregon Custody and Maintenance of Records Laws, ORS 192.005 through192.170.

8.7. Injunctive Relief and Other Remedies. Each party acknowledges that breach of this section 8, including disclosure of any Confidential Information may give rise to irreparable injury which may be inadequately compensable in damages. Accordingly, each party may seek injunctive relief against the breach or threatened breach of the foregoing undertakings, in addition to any other legal remedies that may be available. Each party acknowledges and agrees that the covenants contained herein are necessary for the protection of the legitimate business interests of the other and are reasonable in scope and content.

8.8. Publicity. Contractor agrees that it will not disclose the form, content or existence of this Contract or any Deliverable in any advertising, press releases or other materials distributed to prospective customers, or otherwise attempt to obtain publicity from its association with DLCD or the State of Oregon, whether or not such disclosure, publicity or association implies an endorsement by DLCD or the State of Oregon of Contractor’s services, without the prior written consent of DLCD.

9. Independent Contractor; Taxes and Withholding.

9.1. Contractor shall perform all Services as an independent contractor. Although DLCD reserves the right to determine the delivery schedule for the Services to be performed and evaluate the quality of the completed performance. DLCD 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 the Services.

9.2. If Contractor is currently performing services for the State of Oregon or the federal government, Contractor, by signing this Contract, declares and certifies that:

9.2.1. Contractor’s delivery of Services creates no potential or actual conflict of interest as defined by ORS 244;

9.2.2. No rules or regulations of Contractor’s employing agency (state or federal) would prohibit Contractor’s Services under this Contract;

9.2.3. If applicable, Contractor meets the specific independent contractor standards of ORS 670.600; and

9.2.4. Contractor is not an “officer,” “employee,” or “agent” of DLCD as those terms are used in ORS 30.265.

9.3. Contractor is responsible for all federal or state taxes applicable to compensation or payments to Contractor under this Contract and, unless Contractor is subject to backup withholding, DLCD will not withhold from such compensation or payments any amounts to cover Contractor’s federal or state tax obligations. Contractor is not eligible for any Social Security, unemployment insurance or workers’ compensation benefits from compensation or payments to Contractor under this Contract, except as a self‑employed individual.

10. Representations and Warranties.

10.1. Contractor’s General Representations and Warranties. Contractor represents and warrants to DLCD that:

10.1.1. Contractor is not an “officer,” “employee,” or “agent” of DLCD or DLCD, as those terms are used in ORS 30.265;

10.1.2. Contractor fully understands and will perform its obligations under this Contract and will not make any claims for, or have any rights to relief based on its claim that it misunderstood the terms of this Contract, or lacked information related to its required performance under this Contract;

10.1.3. Contractor is qualified to do business in the State of Oregon and will remain qualified throughout the Contract term;

10.1.4. Contractor is not in arrears in the payment of any monies due and owing the State of Oregon, or any department or agency thereof, including but not limited to the payment of taxes and employee benefits, and will not become so during the Contract term;

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

10.1.6. Contractor will comply with all federal, state, and local laws, ordinances, rules, and regulations applicable to its performance under this Contract.

10.1.7. Contractor is not in violation of, charged with nor, to the best of Contractor’s knowledge, under any investigation with respect to violation of, any provision of any federal, state or local law, ordinance or regulation or any other requirement or order of any governmental or regulatory body or court or arbitrator applicable to provision of the Services, and Contractor’s provision of the Services shall not violate any such law, ordinance, regulation or order;

10.1.8. Contractor’s performance under this Contract to the best of Contractor's knowledge creates no potential or actual conflict of interest, as defined by ORS 244, for either Contractor or any Contractor personnel that will perform the Services under this Contract;

10.1.9. Contractor represents and warrants that the personnel providing services under this Contract are employees of Contractor; that Contractor withholds applicable income taxes from the pay of its employees; that Contractor pays workers’ compensation insurance premiums arising from the employment of its employees under this Contract; that Contractor makes all other applicable tax and related payments arising from that employment (including without limitation social security tax payments); and that Contractor provides employee benefits to its employees, including without limitation health insurance benefits, vacation benefits, and retirement benefits;

10.1.10. Contractor (to the best of Contractor’s knowledge, after due inquiry), for a period of no fewer than six (6) calendar years preceding the Effective Date of this Contract, Contractor faithfully has complied with:

· 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;

· Any tax provisions imposed by a political subdivision of this state that apply to Contractor, to Contractor’s property, operations, receipts, or income, or to Contractor’s performance of or compensation for any work performed by Contractor;

· Any tax provisions imposed by a political subdivision of this state that applied to Contractor, or to goods, services, or property, whether tangible or intangible, provided by Contractor; and

· Any rules, regulations, charter provisions, or ordinances that implemented or enforced any of the foregoing tax laws or provisions;

10.1.11. Contractor possesses and will maintain at its own expense all required licenses, certifications and permits necessary to deliver Services under this Contract;

10.1.12. Contractor has the power and authority to enter into and perform this Contract;

10.1.13. This Contract, when executed and delivered, is a valid and binding obligation of Contractor enforceable in accordance with its terms;

10.1.14. Contractor has the skill and knowledge possessed by well-informed members of its trade or profession and Contractor will apply that skill and knowledge with care and diligence so Contractor and Contractor’s employees and any authorized subcontractors perform the Services described in this Contract according to the highest standards prevalent in the industry or business most closely involved in providing the Services that Contractor is providing to DLCD pursuant to this Contract;

10.1.15. The Services and each Deliverables delivered by Contractor pursuant to the Services will materially comply with any service descriptions, specifications, standards or requirements set forth in this Contract; and

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

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

11. Ownership and Licenses.

11.1. Work Product. DLCD owns all Work Product. Work Product includes everything that is specifically made, conceived, discovered, or reduced…