Attachment_B_Sample Agreement To Agree_Final.docx

ATTACHMENT B – SAMPLE AGREEMENT TO AGREE

This Agreement to Agree (“ATA”) is between the State of Oregon (“State”) acting by and through its Department of Administrative Services, Procurement Services (“DAS PS”) on behalf of state agencies and members of the Oregon Cooperative Purchasing Program (“Authorized Purchasers”) and _________________, (“Consultant”) for _____________________ (“Services”).

Recitals

A. DAS PS desires to engage Consultant through this ATA to make available to DAS PS and other Authorized Purchasers certain ____________ Diversity, Equity, Inclusion, and Belonging Services, as described on Exhibit B (“Services”).

B. On ____________, April 17, 2024, DAS PS issued RFP # S-10700-00010098 ___________ to provide authority to directly award contracts to Consultant and other providers of the Services.

C. Consultant desires to perform the Services for DAS PS, agencies of the State of Oregon that are subject to DAS procurement authority according to ORS 279A.050 and 279A.140 and that are authorized to use this ATA through a delegation of authority according to OAR 125-246-0170 (“Authorized Agencies”), and any non-Authorized Agency participant in the Oregon Cooperative Procurement Program operated by DAS PS (“ORCPP Member”), pursuant to the terms of this ATA. DAS PS, Authorized Agencies and ORCPP Members are collectively referred to as “Authorized Purchasers.”

Agreement

DAS PS and Consultant agree as follows:

1. Purpose of ATA. This ATA establishes terms and conditions applicable to Consultant and DAS PS in connection with the Services, including but not limited to:

1.1. the form of the ordering instruments to be used by Authorized Purchasers and Consultant to enter contracts for Services, including: Service Order Contracts (“SOCs”) or other ordering instruments (collectively, “Contracts”);

1.2. the terms and conditions applicable to Contract;

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

1.4. the pricing applicable to Contracts.

State AgencyAuthorized Agency Authorized Purchasers and Consultant will enter into binding and enforceable contracts for Services only by execution of Contracts, substantially in the form attached hereto as Exhibit C. Other Authorized Purchasers (ORCPP Members) may enter into Contracts substantially in the form of Exhibit C but are not required to do so and may use forms or other ordering instruments as agreed upon by the Authorized Purchaser and Consultant. Comment by Johnson Karen J: KJJ COMMENT 4.16.2024 - DAS PS can only dictate what contract forms State Agencies under its authority will use.

Each Contract 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 Contract.

2. Effective Date and Term. This ATA is effective on the date that it has been executed by DAS PS and Consultant and has been approved as required by applicable law (“Effective Date”). Unless terminated or extended, this ATA expires on ___________________ (“ATA term”). DAS PS and Consultant may extend this ATA by written agreement. ATA expiration or termination does not extinguish or prejudice DAS PS’ right to enforce this ATA with respect to any Consultant breach or any default or defect in Consultant performance that has not been cured.

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

1) This ATA less all exhibits;

2) Exhibit A, Contract Terms and Conditions;

3) Exhibit B, Description of Services; Pricing;

4) Exhibit E, Insurance Requirements;

5) Exhibit D, Opportunity Notice Form; and

6) Exhibit C, Service Order Contract Form; and

7) Exhibit F, Volume Sales Report Template.

4. Firm Offer Established; Pricing Changes.

4.1. Firm Offer Established. This ATA constitutes a firm offer by Consultant regardless of whether any Service Order Contract(s) is executed. This ATA is enforceable as a firm offer pursuant to ORS 279B.140 for the ATA term specified in section 2, and all pricing in Exhibit B is valid until the ATA expires or is terminated, unless the pricing is changed according to subsection 4.2.

4.2. Pricing Changes. Consultant shall keep pricing specified in Exhibit B fixed for at least the first twenty-four (24) full months of this ATA. Thereafter, DAS PS and Consultant may adjust pricing no more than once annually, at the time of renewal, by ATA amendment. Consultant shall submit all pricing increase requests to DAS PS in writing, 60 days prior to the ATA renewal date, supported by the Producer Price Index Series PCU541610541610 (management consulting services) 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.

4.2.1. Pricing changes shall be equal to the percentage change (increase or decrease) of the base index from the rate twelve (12) months prior e.g. January to January, December to December, etcetera. At no time shall the percentage increase exceed 5%.

4.2.2. Pricing changes will not be granted retroactively or for years in which Consultant failed to request increases.

4.2.3 DAS PS and Authorized Purchaser(s) shall be given the benefit of any price decrease. Consultant shall notify DAS PS at the time of ATA renewal, of the amount and effective dates of the decrease. This decrease shall apply to orders placed on or after the Effective Date of the ATA extension. Invoices shall reflect prices in effect on the date the Authorized Purchaser SOC was written.

4.2.4 Should such decreased rates again increase during the term of the ATA, including extensions, DAS PS shall honor the increase if acceptable documentation verifying the increase is submitted to DAS PS. DAS PS shall determine what constitutes acceptable documentation.

5. Non-exclusive ATA; Contracts and Consultant Selection.

5.1. Non-exclusivity. This ATA is not exclusive. Each Authorized Purchaser retains the right to contract for Services through any selection process authorized by law, or to perform the Services itself. Neither DAS PS nor any other Authorized Purchaser guarantees that any specific number of Contracts will be entered or that any specific amount of Services will be required.

5.2. Contracts. From time to time, Authorized Purchasers may request Services from Consultant and enter into Contracts as set forth herein.

5.3. Consultant Selection. In the event DAS PS awards more than one ATA, Authorized Purchaser must select a Consultant based upon the process outlined below.

5.3.1. Small Purchases. If the estimated cost of the requested Services from Authorized Purchaser is within the small procurement threshold, as per OAR 125-247-0265, Authorized Purchaser may direct award a Service Order Contract to a Consultant qualified to provide the requested services. Authorized Purchaser shall use Exhibit D, Opportunity Notice to request quotes from ATA holders. If the estimated cost will be over $10,000 Authorized Purchasers must also consider ORS 279B.065(2)(a)(b).

5.3.2. Intermediate Purchases. If the estimated cost of the Services from Authorized Purchaser is within the intermediate procurement threshold, as per OAR 125-247-0270, Authorized Purchaser must use a best value analysis (BVA) process to select the Consultant.

Authorized Purchaser shall issue an Opportunity Notice substantially in the form attached hereto as Exhibit D, Opportunity Notice detailing the Service(s) needed and evaluation criteria, including: Service availability, time for delivery or performance, costs, experience and any other factors. Authorized Purchaser shall send that Opportunity Notice to a minimum of three (3) Consultants qualified to provide the requested Services, and at least one (1) of the Consultants notified must be a COBID certified firm if possible. (DAS PS advises that Authorized Purchaser send the Opportunity Notice to all Consultants who are approved to provide the requested the Services in order to receive the best responses, but that is not required at the intermediate purchase level).

Authorized Purchaser shall award the Service Order Contract to the Consultant with the offer that is in the best interest of Authorized Purchaser under the BVA.

5.3.3. Large Purchases. If the estimated cost of the requested services from Authorized Purchaser is over the intermediate procurement threshold, as per OAR 125-247-0260, Authorized Purchaser must conduct a BVA.

Authorized Purchaser shall issue an Opportunity Notice substantially in the form attached hereto as Exhibit D, detailing the Service(s) needed and evaluation criteria, including: Service availability, time for delivery or performance, costs, experience and any other factors. Authorized Purchaser must send the Opportunity Notice to all Consultants who are approved to provide the requested Services. For example, if Authorized Purchaser needs Services in Service Category A & D, the Opportunity Notice must be sent to each Consultant in those two (2) categories.

Authorized Purchaser shall award the Service Order Contract to the Consultant with the offer that is in the best interest of Authorized Purchaser under the BVA.

5.4. DAS Delegation. Authorized Purchasers that are agencies of the State of OregonAgencies under DAS procurement authority may issue ordering instruments under this ATA for any dollar amount without further delegation of procurement authority from DAS. Notwithstanding the foregoing DAS delegation, Authorized Purchasers that are agencies of the State of Oregon must obtain all other necessary approvals, including but not limited to legal sufficiency approval, as may be required.

6. Signed Contract Required for Services.

6.1. Contract Form. DAS PS and State AgencyAuthorized Agency Authorized Purchasers must use a SOC form substantially similar to the form attached as Exhibit C. ORCPP Members may use their own forms of SOC as agreed upon with Consultant.

6.2. Contract Negotiation. Prior to signing a Contract, Authorized Purchaser and Consultant 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. Authorized Purchaser and Consultant may negotiate a fixed price or maximum amount payable for the Services under the Contract based on the pricing specified in Exhibit B. Consultant’s pricing under any resulting Contract shall not exceed the pricing specified in Exhibit B.

6.3. Contract Content. To order Services, Authorized Purchaser shall complete the best value analysis process set forth in section 5.3 above and must submit a Contract to the selected Consultant that specifies all of the following:

· Language stating that the Contract is submitted under this ATA and the ATA number

· Language incorporating all Contract terms and conditions of Exhibit A into the Contract which may be modified by ORCPP Members only for consistency with applicable law

· Clear description of the required Services and associated deliverables

· Rates and maximum amount payable for the Services (including travel and other expenses)

· Required delivery schedule for the Services.

· Invoicing address

· Name of Authorized Purchaser’s authorized representative and contact information for that individual, including telephone number and e-mail address

6.4. Contract Rejection. Consultant shall reject Contracts that do not comply with this section 6. Consultant also shall reject Contracts that are not from Authorized Purchasers. Consultant may verify ORCPP Members at: https://www.oregon.gov/das/Procurement/Pages/Orcppmember.aspx

6.5. Contract Creation. Each fully executed Contract creates a separate contract between Authorized Purchaser and Consultant that is enforceable according to its terms and is independent of all other executed Contracts. Each Contract consists only of the terms specified for Contracts in this ATA and no other terms, regardless of source. DAS PS is an intended beneficiary under each Contract between Authorized Purchasers and Consultant. DAS PS is not obligated or liable to Consultant under any Contract unless DAS PS is purchasing the Services as the Authorized Purchaser.

6.6. Authorized Purchaser’s Responsibility under Contracts. Consultant shall look solely to the Authorized Purchaser for any rights and remedies Consultant may have at law or in equity arising under any Contract between Consultant and the Authorized Purchaser. Consultant acknowledges and agrees that DAS PS is not liable to Consultant under any Contract entered into between Consultant and an Authorized Agency or an ORCPP Member unless DAS PS is purchasing the Services as the Authorized Purchaser.

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

8. Payment. Authorized Purchaser will pay Consultant for Services and associated deliverables according to the payment methodology specified in the applicable Contract. Authorized Purchaser will pay Consultant only for Services that Consultant has delivered or completed and Authorized Purchaser has accepted.

9. Volume Sales Report and Vendor Collected Administrative Fee. As set forth in: https://www.oregon.gov/das/Procurement/Pages/Supplier.aspx Consultant shall submit quarterly reports on total gross sales Volume Sales Reports (VSRs), in a form attached hereto as Exhibit F or as otherwise approved by DAS PS, and Consultant shall pay DAS PS a Vendor Collected Administrative Fees (VCAF) of two percent (2%) of total gross sales. Consultant shall not reflect the VCAF as a separate line-item charge to Authorized Purchasers.

10. Representations and Warranties: Consultant represents and warrants to DAS PS and Authorized Purchaser that:

10.1. Consultant fully understands and will perform its obligations under this ATA or any Contract.

10.2. Consultant is qualified to do business in the State of Oregon and will remain qualified throughout the ATA term or any Contract.

10.3. Consultant is not in arrears in the payment of any monies due and owing the State of Oregon, or any agency, board, commission, department or division thereof, including the payment of taxes and employee benefits, and will not become so during the ATA or any Contract.

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

10.5. Consultant 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 ATA or any Contract.

10.6. Consultant is not in violation of, charged with nor, to the best of Consultant’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 Consultant’s provision of the Services shall not violate any such law, ordinance, regulation or order.

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

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

10.9. Consultant (to the best of Consultant’s knowledge), for a period of no fewer than six (6) calendar years preceding the Effective Date, faithfully has complied with: (i) all tax laws of this state, including but not limited to taxes referenced in ORS 305.380(4), ORS 305.620 and ORS chapters 316, 317, and 318; (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, (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.

10.10. Consultant possesses and will maintain at its own expense all required licenses, certifications and permits necessary to deliver Services under this ATA and all Contracts.

10.11. Consultant has the power and authority to enter into and perform this ATA and all Contracts.

10.12. This ATA and any Contract, when executed and delivered, is a valid and binding obligation of Consultant enforceable according to its terms.

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

10.14. When used as authorized by this ATA or any Contract, no Work Product infringes nor will Authorized Purchaser’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 ATA or in any Contract.

11. Independent Contractor; Taxes and Withholding.

11.1. Consultant shall perform all Services as an independent contractor. Although Authorized Purchaser reserves the right to determine the delivery schedule for the Services to be performed and evaluate the quality of the completed performance, Authorized Purchaser cannot and will not control the means or manner of Consultant’s performance. Consultant is responsible for determining the appropriate means and manner of performing the Services.

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

11.2.1. Consultant’s delivery of Services creates no potential or actual conflict of interest as defined by ORS 244.

11.2.2. No rules or regulations of Consultant’s employing agency (state or federal) would prohibit Consultant’s Services under this ATA or any Contract.

11.2.3. If applicable, Consultant meets the specific independent contractor standards of ORS 670.600; and

11.2.4. Consultant is not an “officer,” “employee,” or “agent” of Authorized Purchaser as those terms are used in ORS 30.265.

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

12. ATA Default. Consultant is in default of this ATA if:

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

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

12.3. Consultant violates or fails to perform any covenant, representation, warranty, obligation or certification under this ATA.

Before Consultant can be found in default of this ATA, DAS PS shall first deliver a notice of default to Consultant. The notice must describe the specific nature of the default, cite the specific provisions of this ATA 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.

13. Remedies for Default. If Consultant is in default under section 12, DAS PS may, at its option, pursue any or all remedies available to it under this ATA and at law or in equity, including, termination of this ATA 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 Consultant has been given notice if required by law), or any or all.

14. Termination.

14.1. Mutual Termination. The parties may terminate this ATA upon the date specified in written agreement.

14.2. DAS PS’ Right to Terminate the ATA. DAS PS may, at its sole discretion, terminate this ATA as follows:

14.2.1. DAS PS may terminate this ATA upon thirty (30) calendar days’ prior written notice to Consultant or any later date as specified in the written notice; or

14.2.2. DAS PS may terminate this ATA 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 ATA.

14.3. DAS PS’ Right to Terminate the ATA for Cause. In addition to any other rights and remedies DAS PS may have under this ATA, DAS PS may terminate this ATA, in whole or in part, immediately upon written notice to Consultant of Consultant’s default under section 12.

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

15. Compliance with Law.

15.1. Consultant shall comply with all applicable federal, state and local laws, regulations, executive orders and ordinances, as may be adopted or modified from time to time and as applicable to this ATA and all Contracts and the Services provided hereunder.

15.2. Consultant’s Compliance with Tax Laws. Consultant shall, throughout the term of this ATA and all Contracts and any extensions of either, 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 ATA.

16. Indemnity. Consultant shall defend, save, hold harmless, and indemnify the State of Oregon and DAS PS, 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 Consultant or its officers, employees, subcontractors, or agents under this ATA or any Contract including:

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

15.2 Any claim against the State or Authorized Purchaser, which, if true, would constitute a breach by Consultant of any of the representations, warranties, or covenants set forth in this ATA.

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

17. Insurance. Consultant, at its sole cost, shall may, but is not required, to obtain and maintain the insurance coverages and comply with the requirements set forth in Exhibit E upon execution of the ATA. for the term of the ATA and any Contract. EachAn Authorized Purchaser may request these same additional or other insurance coverages for work under any Contract. Comment by JOLLEY Jennifer * DAS: It was decided by management to not require insurance at the ATA level. Only at the SOC level. We may decide to change this if everything goes off the rails. I’m putting in the buyer’s guide and in the opportunity noticed that agencies will need to obtain a COI prior to executing a SOC.

Should we move this back to Exhibit A contract terms and conditions? Here is what the other version said about insurance:

Consultant, at its sole cost, shall obtain and maintain the following minimum insurance coverages for the term of any Contract with an Authorized Purchaser. Authorized Purchaser must obtain a certificate of Insurance meeting or exceeding the requirements of this Section 21 prior to executing any SOC. Authorized Purchaser may request additional or other coverage, as Authorized Purchaser deems necessary.

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

19. Venue and Consent to Jurisdiction. Any claim, action, suit, or proceeding (collectively, “Claim”) between DAS PS and Consultant that arises from or relates to this ATA 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. CONSULTANT 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.

20. ATA Contract Administrators. The ATA Contract Administrators for DAS PS and for Consultant are the individuals identified in this section or any other individual identified in writing as the ATA Administrator to the other party.

21. Notice. Except as otherwise expressly provided in this ATA or a Contract, any communications between the parties hereto or notices to be given hereunder must be given in writing by email, personal delivery, or mailing the same, postage prepaid, to Consultant or DAS PS at the email address, postal address or telephone number above, or to such other addresses or numbers as either party may indicate and to Authorized Purchaser and Consultant at any email address, postal address or telephone number set forth in the Contract. Any communication or notice so addressed and mailed is effective five (5) Business Days after mailing. Any communication or notice given by personal delivery is effective when actually delivered. Any notice given by email is effective when the sender receives confirmation of delivery, either by return email, or by demonstrating through other technological means that the email has been delivered to the intended email address.

22. Severability. The parties agree that if any term of this ATA or a Contract is declared by a court of competent jurisdiction to be illegal or in conflict with any law, the validity of the remaining terms is not affected, and the rights and obligations of the parties are construed and enforced as if this ATA or Contract did not contain the particular term held to be invalid.

23. Counterparts. This ATA and any Contract may be executed in several counterparts, all of which when taken together shall constitute one agreement binding on all parties, notwithstanding that all parties are not signatories to the same counterpart. Each copy of this ATA or Contract so executed shall constitute an original.

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

25. Intended Beneficiaries. DAS PS and Consultant are the only parties to this ATA and are the only parties entitled to enforce its terms. Nothing in this ATA gives, is intended to give, or will be construed to give or provide, any benefit or right, whether directly, indirectly, or otherwise, to third persons unless such third persons are individually identified by name herein and expressly described as intended beneficiaries of the terms of this ATA. Authorized Purchasers are intended beneficiaries of this ATA. Authorized Purchaser and Consultant are the only parties to any Contract issued under this ATA, and DAS PS is an intended beneficiary of the terms of any Contract.

26. Foreign Contractor. If Consultant is not domiciled in or registered to do business in the State of Oregon, Consultant shall promptly provide to the Oregon Department of Revenue and the Secretary of State, Corporation Division, all information required by those agencies related to this ATA.

27. Records Maintenance; Access. Consultant shall maintain all other records relating to this ATA and all Contracts in such a manner as to clearly document Consultant’s performance of its duties under this ATA and any Contract. In addition, Consultant shall maintain all fiscal records relating to this ATA and any Contract and Consultant’s performance hereunder, according to Generally Accepted Accounting Principles. Consultant acknowledges and agrees that DAS PS, Authorized Purchaser and the Oregon Secretary of State’s Office, the Oregon Department of Revenue, the Oregon Department of Justice and their duly authorized representatives shall have access to such records and other books, documents, papers, plans and writings of Consultant relating to this ATA and all Contracts to perform examinations and audits and make excerpts and transcripts. Consultant shall retain and keep accessible all fiscal and other records relating to this ATA and all Contracts, including books, documents, papers, plans, and writings, for a minimum of six (6) years, or such longer period as may be required by applicable law, following final payment and termination or expiration of this ATA and any Contract, or until the conclusion of any audit, controversy or litigation arising out of or related to this ATAT or any Contract, whichever date is later.

28. Nondiscrimination in Employment. Consultant certifies that Consultant 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. Consultant agrees, as a material term of the ATA, to maintain the policy and practice in force during the entire ATA term.

29. Pay Equity. As required by ORS 279B.235, Consultant 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. Consultant’s compliance with this section is a material term of this ATA, and Consultant’s failure to comply constitutes a breach entitling Agency to terminate this ATA or any Contract for cause.

Further, Consultant 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. Consultant 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.

30. Oregon False Claims Act. Consultant acknowledges the Oregon False Claims Act, ORS 180.750 to 180.785, applies to any action by Consultant pertaining to this ATA and any Contract, including the procurement process relating to this ATA, which constitutes a "claim" (as defined by ORS 180.750(1)). By its execution of this ATA, Consultant 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 ATA or any Contract. In addition to other penalties that may be applicable, Consultant 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 Consultant. Consultant 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 ATA or any Contract or any other provision of law.

31. Consultant Data. Consultant shall provide all information requested below. DAS PS/Authorized Purchaser will report this information to the Internal Revenue Service (“IRS”) under the name and taxpayer identification number provided. (See IRS 1099 for additional instructions regarding taxpayer identification numbers.) Information not matching IRS records could subject Consultant to thirty-one percent (31%) backup withholding.

Name (tax filing):

Address:

Citizenship: Non-resident alien Yes No

Business Designation (check one):

Corporation Partnership Limited Liability Company

Limited Liability Partnership Sole Proprietorship Limited Partnership

Benefit Company

Federal Tax ID#: or Social Security No.:

(These numbers are requested pursuant to ORS 305.385 and OAR 150-305.100.)

32. Integration. This ATA 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 ATA.

Authorized Signatures:

Consultant:

By: ____________________________________________

Title: __________________________________________ Date: ________________

The State of Oregon acting by and through its Department of Administrative Services

By: ____________________________________________

Title:___________________________________________ Date: ________________

Approved pursuant to ORS 291.047

Oregon Department of Justice

EXHIBIT A

to Agreement to Agree #_____

CONTRACT TERMS AND CONDITIONS

These Contract Terms and Conditions apply to all Contracts issued under this ATA, including Service Order Contracts or other agreed upon ordering instruments.

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

“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.

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

“Contract” means any Service Order Contract or other agreed upon ordering instrument issued under this ATA.

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

“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 Authorized Purchaser pursuant to the Services.

2. Non-Exclusive Contract. Consultant acknowledges and agrees that by executing this Contract, Authorized Purchaser is not granting to Consultant the exclusive right to perform the Services, or any other services, for Authorized Purchaser. Authorized Purchaser reserves the right to contract with other entities to provide Authorized Purchaser with services that are the same or similar to those provided by Consultant under this Contract; and perform any or all of the Services itself.

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

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

5. Invoicing and Payment.

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

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

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

If an error or dispute arises concerning the amount charged in an invoice, Authorized Purchaser will notify Consultant of the disputed charge. Upon notification of dispute, Consultant shall submit to Authorized Purchaser all documentation Authorized Purchaser requires to substantiate the amount charged. Authorized Purchaser, in its sole discretion, will determine if the supporting documentation provides sufficient substantiation for the disputed charges. If Authorized Purchaser determines that the supporting documentation is sufficient, Authorized Purchaser will notify Consultant and pay Consultant the amount charged in the invoice. If Authorized Purchaser determines the supporting documentation supports payment of an amount less than originally invoiced, Authorized Purchaser will notify Consultant of the amount Authorized Purchaser believes is due under the invoice, and Authorized Purchaser will pay the invoice in that lesser amount.

6. Performance, Delivery and Acceptance.

6.1. Responsibilities of Consultant. Consultant shall perform the Services in accordance with the standards and methodologies set forth in the Statement of Work and this Contract. Consultant shall cooperate with Authorized Purchaser and its designated third parties by providing access and information on the 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 Consultant’s delivery of Services or Deliverables, or both, Authorized Purchaser will review the Services and Deliverables to determine whether the Services and Deliverables meet the Contract requirements. If Authorized Purchaser determines that the Services and Deliverables meet the Contract requirements, Authorized Purchaser will notify Consultant of Authorized Purchaser’s acceptance.

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

Consultant’s failure to deliver Services or Deliverables that meet the specifications and performance standards after Authorized Purchaser’s second review may constitute a default by Consultant, if Authorized Purchaser chooses not to allow Consultant any further attempts to revise and redeliver the Services or Deliverables, or both. Upon such default, Consultant shall refund to Authorized Purchaser all amounts paid by Authorized Purchaser 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 Authorized Purchaser may have for Consultant’s default.

6.3. Responsibilities of Authorized Purchaser. If this Contract requires Authorized Purchaser to provide any information or resources, and Authorized Purchaser 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, Consultant’s sole remedy is an extension of the applicable delivery dates corresponding to the delay. If Authorized Purchaser’s failure to provide such resources exceeds ten (10) Calendar Days, and Consultant can show to the reasonable satisfaction of Authorized Purchaser, that Authorized Purchaser’s failure has resulted in an unavoidable increase in the cost of the Services required for the Statement of Work then Consultant will be entitled to recover from Authorized Purchaser the reasonable amount of such increased costs. Consultant's right to delay applicable delivery dates or recover for increased costs may be exercised only if Consultant provides Authorized Purchaser with reasonable notice of Authorized Purchaser's failure and Consultant uses commercially reasonable efforts to perform notwithstanding Authorized Purchaser's failure to perform.

7. Consultant’s Personnel.

7.1. Key Persons. Consultant’s Key Persons are identified in Contract, Exhibit No. 1. The hourly rates applicable to each Key Person are specified in the Contract. Consultant acknowledges and agrees that a significant reason Authorized Purchaser selected Consultant and is entering into this Contract is because of the special qualifications of each Key Person. Authorized Purchaser is engaging the expertise, experience, judgment, and personal attention of such Key Persons under this Contract. Neither Consultant 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 Consultant unless Authorized Purchaser provides prior written consent to such delegation.

Authorized Purchaser may, in its sole discretion, require Consultant to replace a Key Person who violates any provision of this Contract or in any way fails to meet or exceed the performance standards required by Authorized Purchaser. Consultant shall not reassign or transfer a Key Person to other duties or positions so that the Key Person is no longer available to provide Authorized Purchaser with that Key Person’s services unless Authorized Purchaser 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 Authorized Purchaser requests a reassignment or replacement or if Consultant requests Authorized Purchaser’s consent to a delegation, reassignment, transfer or other replacement of a Key Person, Authorized Purchaser 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. Consultant shall not charge Authorized Purchaser, and Authorized Purchaser 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 not extend for more than twenty-eight (28) Calendar Days. All replacement personnel approved by Authorized Purchaser are deemed Key Persons for purposes of this Contract, and this Contract is deemed amended to include those Key Persons.

7.2. Subcontracts. Consultant shall not enter into any subcontracts for any of the Services required by this Contract without Authorized Purchaser’s prior written consent. In addition to any other provisions Authorized Purchaser may require, Consultant shall include in any permitted subcontracts under this Contract a requirement that the subcontractor be bound by the provisions of this Contract as if the subcontractor were the Consultant. Authorized Purchaser’s consent to any subcontractor shall not relieve Consultant of any of its duties or obligations under this Contract.

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

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

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

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”).