ATTACHMENT Q - SAMPLE ENERGY PERFORMANCE CONTRACT 26-189 ESCO EPID RFQ Final.pdf

Attachment Q, Sample Energy Performance Contract AGENCY RFQ NUMBER 26-189 ESCO EPID; OREGONBUYS SOLICITATION NUMBER S-33000-00018034 Page 1 of 28

ATTACHMENT Q, SAMPLE ENERGY PERFORMANCE CONTRACT

AGENCY RFQ NUMBER 26-189 ESCO EPID; OREGONBUYS SOLICITATION NUMBER S-33000-00018034

This is a “sample” contract only and is subject to refinement and revision as required by Oregon State Statute and Oregon Administrative Rules.

STATE OF OREGON

SAMPLE ENERGY PERFORMANCE CONTRACT

CONTRACT NO. _______________

Project Name: [Insert]

CONTRACT OVERVIEW

This Energy Performance Contract (sometimes referred to herein as an “EPC” or “Contract”) is between the State of Oregon, acting by and through its [insert Contracting Agency] (“Agency” or “Owner”) and __[legal company name as provided to IRS (and DBA name if applicable)]_, [Enter the state of incorporation if Consultant is a corporation] a _(enter state) corporation (“Consultant”, “Contractor”, or “ESCO”). Agency and ESCO together are referred to as “Parties” and individually referred to as “Party.”

This Contract is for Services related to completion of the (insert) project more particularly described as follows (the “Project”):

[Insert the common name of the Project, a brief description of the entire Project, the address of the Project.]

DEFINITIONS

The following definitions apply to this Contract:

a) “business days” means calendar days, excluding Saturdays, Sundays and all State of Oregon recognized holidays.

b) “calendar days” means any day appearing on the calendar, whether a weekday, weekend day, national holiday, State of Oregon holiday or other day.

c) “Commissioning” means a systematic process that ensures that systems perform interactively according to the design intent and Agency's operational needs. For the purposes of this Contract, the commissioning process begins in Phase 3 with documentation of the design intent, including construction, Agency acceptance, training of maintenance and operations personnel, and extends through Phase 4 and the warranty period with actual and documented verification of the proper performance of each system and each piece of equipment in the System.

d) “Construction Contract Documents” means the Design and Implementation contract addendum for purposes of Phase 3 and 4, which will incorporate (and may modify) applicable terms and conditions of this Contract; the requirements of ORS 279A and ORS 279C, the State of Oregon General Conditions for Pubic Improvement Contract and any Supplemental General Conditions; any amendments to the Contract; ESCO’s public works, performance and payment bond(s); the design plans and specifications for the construction work; the Measurement and Verification documents;

approved shop drawings for the Project; and all approved change orders related to the Design and Implementation.

e) “days” means calendar days.

AGENCY RFQ NUMBER 26-189 ESCO EPID; OREGONBUYS SOLICITATION NUMBER S-33000-00018034 Page 2 of 28

f) “Energy Baseline” means the calculation or measure of each type of energy consumed in the Facility, prior to the installation of Energy Efficiency Measures.

g) “Energy Conservation Measure” (or “ECM”) means a measure primarily designed to reduce the use of energy resources in a facility.

h) “Facility” means the [insert project description/building] that is the subject of this Contract.

i) “Measurement and Verification” (“M&V”) means the examination of installed ECMs using the

International Performance Measurement and Verification Protocol (“IPMVP”), or any other comparable protocol or process, to monitor and verify the operation of energy-using systems pre-installation and post-installation.

j) “Professional Services” means architectural, engineering, photogrammetric mapping, transportation planning or land surveying services that require license under ORS 672 or ORS 671.

k) “Project Development Plan” means the design development documents, prepared by ESCO as part of Phase 2.

l) “Project Cost” means the total amount Agency will pay for the Project including the Direct Construction Costs. The Project Cost shall include all costs for ESCO’s services including, but not limited to, costs related to:

• Investment audit services

• Engineering and design

• Energy Conservation Measures equipment procurement and installation

• Construction Work/services

• Commissioning

• Training

• Overhead and profit margins

• Measurement and verification

m) “State” means State of Oregon.

n) “Statement of Work” means the Work and Services set forth in detail in Exhibits A, B and C.

o) “Work” means the furnishing of all material, equipment, labor, transportation, services and incidentals necessary to successfully complete any individual item or the entire Phase 3 portion of the Contract and the carrying out of duties and obligations imposed by the Construction Contract Documents.

p) “Work Product” means all Plans, Specifications, drawings, audits, reports, and other work product required to be delivered by ESCO under this Contract.

1. Contract Effective Date, Term, Phasing, and Commencement Dates

a) This Contract is effective on the date it has been signed by the Parties and all required approvals have been obtained. ESCO shall take all actions reasonably necessary to complete each of the four Phases of the Contract. This Contract expires either (i) after completion of all phases of the Project and issuance of final payment by the Agency to ESCO; or (ii) upon termination. Agency may, for cause or for convenience, terminate the Contract or any Phase of it, should Agency, in its sole discretion, determine it is in the public interest to do so.

b) It is the Parties’ intention to proceed with the Project and, in good faith, take all actions reasonably necessary to complete each of the four Phases of Services. However, Parties agree that each Phase is independent, and, the Parties understand and agree that Owner may, for cause or for convenience, terminate this Contract or any Phase hereof, should Owner, in its sole discretion determine it is in the public interest to do so.

c) Each Phase of the Contract is independent. This initial phase addresses the Phase 1 and Phase 2 Services. If Agency accepts the PDP and desires to proceed with the remaining phases of work, then ESCO and Agency will negotiate a Design and Implementation contract addendum to this EPC and may execute the Design and Implementation contract addendum to proceed with the

AGENCY RFQ NUMBER 26-189 ESCO EPID; OREGONBUYS SOLICITATION NUMBER S-33000-00018034 Page 3 of 28 remaining phases of work. The Design and Implementation contract addendum itself may also be a phased approach, where the Parties can execute amendments to include additional provisions and work as they are identified and developed during the period of performance. For more information regarding what provisions and requirements will apply to the Design and Implementation contract addendum, please see the definition for “Construction Contract Documents” above.

d) The commencement dates for Phase 1 and Phase 2 will be the dates that Agency issues a respective Notice to Proceed for each such phase. ESCO shall perform no services prior to the applicable commencement date. Phase 4 will commence on the date Agency notifies ESCO of “Substantial Completion” for Phase 3, if Phase 3 is agreed upon and completed.

2. Statement of Work ESCO agrees to take all actions reasonably necessary to develop and implement Phase 1 and Phase 2 of the Project, and to procure and provide all necessary Phase 3 and Phase 4 project management, architectural, engineering, construction, construction management commissioning, training and administration services and Work in the most economical and timely manner possible, with minimal interruption to the Owner, to successfully deliver the Project. The services and Work referenced above are described in detail in Exhibit A of this Contract and in the Design and Implementation Contract. In summary, these services and Work consist of four phases as follows:

a. Phase 1-Investment Grade Audit: ESCO shall perform the Investment Grade Audit, which shall include a detailed evaluation of an existing building or structure, an evaluation of the potential ECMs that could be effectively utilized at the facility, and preparation of a report to the Contracting Agency of the ESCO's findings

b. Phase 2-Project Development Plan: ESCO shall perform a more extensive assessment of the agreed-upon ECMs for the project, including preliminary design, and prepare an overall report or plan summarizing the ESCO’s work during this secondary phase of the project and otherwise explaining how the agreed-upon ECMs will be implemented during the design and construction phase (ECM Design and Implementation); The PDP must lay out, in detail, the specific design, financing, replacements, and overall approach for implementing the Project.

c. Phase 3-Energy Conservation Measure Design and Implementation: ESCO shall complete any plans and Specifications required to implement the Energy Conservation Measures that have been agreed to, and the ESCO performs all fabrication, construction, assembly or installation of the ECMs, and provides commissioning, construction administration and related Personal Services or Work for such implementation

d. Phase 4-Measurement and Verification: ESCO shall examine the installed ECMs using the International Performance Measurement and Verification Protocol (“IPMVP”), or any other comparable protocol or process, to monitor and verify the operation of energy-using systems post-installation. During this phase, the ESCO revisits the Facility to check actual performance

3. Compensation [To be developed between the Parties. See Exhibit D]

4. Contract Documents

a. Exhibits Attached and Incorporated This Contract includes the following exhibits, each of which is attached and incorporated into this Contract by reference:

• Exhibit A – Phase 1 and Phase 2-Statement of Work and Delivery Schedule

AGENCY RFQ NUMBER 26-189 ESCO EPID; OREGONBUYS SOLICITATION NUMBER S-33000-00018034 Page 4 of 28

• Exhibit B – Phase 3 ECM Design and Implementation Contract, Statement of Work and Delivery Schedule

• Exhibit C – Phase 4 M&V, Statement of Work and Delivery Schedule

• Exhibit D – Compensation

• Exhibit E – Insurance

• Exhibit F—Key Persons

5. Order of Precedence Unless a different order is required by law, this Contract consists of the following documents that shall be interpreted in the following order of precedence:

a. Amendments and approved Change Orders to the Contract, with those of a later date having precedence over those of an earlier date;

b. this Contract, including the Statement of Work, with later executed portions of the Contract (i.e., the ECM Design and Implementation or Measurement and Verification) taking precedence over that of an earlier date;

c. all Exhibits, Schedules and Attachments to the Contract;

d. the Supplemental Specifications;

e. the State of Oregon General Conditions for Public Improvement Contracts;

f. Final Agency-approved Schedules

g. The ESCO Prequalification Agreement between ESCO and the Oregon Department of Energy, and all Attachments, exhibits and Addenda thereto.

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

a. ESCO, by its signature on the Contract, certifies that it is an independent contractor as defined in ORS 670.600 and as described in IRS Publication 1779, which is available at the following link:

http://www.irs.gov/pub/irs-pdf/p1779.pdf . ESCO shall perform all required Services as an independent contractor. Although Agency reserves the right (i) to determine the delivery schedule for the Services to be performed and (ii) to evaluate the quality of the completed performance, Agency cannot and will not control the means or manner of ESCO's performance. ESCO is responsible for determining the appropriate means and manner of performing the Services. ESCO is not an "officer", "employee", or "agent" of Agency, as those terms are used in ORS 30.265.

b. ESCO shall be responsible for all federal or state taxes applicable to compensation or payments paid to ESCO under the Contract and, unless ESCO is subject to backup withholding, Agency will not withhold from such compensation or payments any amount(s) to cover ESCO's federal or state tax obligations. Throughout the duration of the Contract, ESCO shall submit an updated W-9 form (http://www.irs.gov/pub/irs-pdf/fw9.pdf) to Agency whenever ESCO’s backup withholding status or any other information changes. ESCO is not eligible for any social security, unemployment insurance or workers' compensation benefits from compensation or payments paid to ESCO under the Contract, except as a self-employed individual.

c. ESCO shall not be responsible for or have control over the means, manner, methods or techniques required of or used by other consultants or contractors under contract with Owner who are performing services or construction work on projects within the scope of the Contract, unless otherwise expressly agreed to in writing by the Parties. The Parties agree, however, that this provision does not in any way revise or adjust ESCO’s professional responsibility to report to Owner any information pertaining to a project, or to performance by other consultants or contractors on a project, that would adversely affect Owner or a particular project, to the extent any such information may come to the attention of ESCO during the performance of Services within the scope of the Contract.

http://www.irs.gov/pub/irs-pdf/p1779.pdf http://www.irs.gov/pub/irs-pdf/fw9.pdf

AGENCY RFQ NUMBER 26-189 ESCO EPID; OREGONBUYS SOLICITATION NUMBER S-33000-00018034 Page 5 of 28

7. Successors and Assigns

b. The provisions of the Contract shall be binding upon and shall inure to the benefit of the Parties hereto, and their respective successors and permitted assigns, if any.

c. Any purported assignment, delegation or disposition in violation of subsection b. above is void.

8. No Third Party Beneficiaries. Agency and ESCO are the only Parties to the Contract and are the only Parties entitled to enforce its terms. Nothing in the Contract gives, is intended to give, or shall be construed to give or provide any benefit or right, whether directly, indirectly or otherwise, to third persons unless such third persons are individually identified by name in the Contract and expressly described as intended beneficiaries of the terms of the Contract.

9. Funds Available and Authorized; Payments. ESCO shall not be compensated for Services performed under the Contract by any other agency or department of the State of Oregon. Agency reasonably believes that, as of the effective date of the Contract, it has sufficient funds available and authorized for expenditure to finance the costs of the Contract within Agency's appropriation or limitation. ESCO understands and agrees that Agency's payment of amounts under the Contract is contingent on Agency receiving from the Oregon Legislative Assembly appropriations, limitations, or other expenditure authority sufficient to allow Agency, in the exercise of its reasonable administrative discretion, to continue to make payments under the Contract. In the event Agency staff responsible for oversight of the Contract become aware that sufficient funds are not available and authorized for expenditure to finance the costs of the Contract within Agency’s appropriation or limitation, Agency shall give prompt written notice to ESCO.

10. Representations and Warranties.

a. ESCO’s Representations and Warranties.

ESCO represents and warrants to Agency that (i) ESCO has the power and authority to enter into and perform the Contract, (ii) the Contract, when executed and delivered is a valid and binding obligation of ESCO, enforceable in accordance with its terms, (iii) the Services under the Contract will be performed in accordance with the professional standard of care set forth in Section 11 below; (iv) ESCO is duly licensed to perform the Services (and bonded, where applicable), and if there is no licensing requirement for the profession or Services, is duly qualified and professionally competent to perform the Services; (v) ESCO is an experienced firm having the skill, legal capacity, professional ability and resources necessary to perform all the Services and Work required under the Contract; (vi) ESCO has no undisclosed liquidated and delinquent debt owed to the State or any department or agency of the State; (vii) ESCO is, or shall become, in a manner consistent with the Standard of Care, familiar with all current laws, rules, and regulations which are applicable to the performance of the Services; and (viii) the provisions of this Contract do not conflict with or result in a default under any agreement or other instrument binding upon ESCO and do not result in a violation of any law, regulation, court decree or court order or other legal process applicable to ESCO;

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

11. Professional Standard of Care; Responsibility of ESCO.

a. Professional Standard of Care.

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

b. Responsibility of ESCO.

AGENCY RFQ NUMBER 26-189 ESCO EPID; OREGONBUYS SOLICITATION NUMBER S-33000-00018034 Page 6 of 28

(i) ESCO shall be responsible for the professional quality, technical accuracy, and coordination of all designs, drawings, specifications, and other Services furnished by ESCO under the Contract. ESCO shall prepare, in accordance with the Standard of Care, all drawings, plans, specifications, deliverables and other documents so they accurately reflect, fully comply with and incorporate all applicable laws, rules, and regulations, and so that they are complete and functional for the purposes intended, except as to any deficiencies due to causes beyond the control of ESCO. ESCO shall, without additional compensation, correct or revise any errors or deficiencies in its designs, drawings, specifications and other Services.

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

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

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

(v) The published specifications of the “Automated Systems” that ESCO has specified, designated and planned pursuant to this Contract conform to the Contract requirements. For the purposes of this subsection, “Automated Systems” shall mean any computers, software, firmware, electrical systems, and any other electrical, mechanized or computerized devices serving the System.

(vii) ESCO shall be responsible for correcting any inconsistencies, errors or omissions in the drawings, specifications, deliverables and other documents prepared by ESCO at no additional cost to Agency.

(viii) Except as specifically provided, ESCO shall, at no additional cost to Agency, render assistance to Agency in resolving problems or other issues relating to the System design or to specified materials and components.

(ix) Permits and licenses to conduct business. Unless otherwise specified in this Contract, ESCO shall obtain, hold, maintain and fully pay for during the term of the Contract all permits and licenses required by law for ESCO to conduct its business and perform the Services under the Contract.

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

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

12. Ownership of Work Product.

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

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

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

Agency or ESCO.

AGENCY RFQ NUMBER 26-189 ESCO EPID; OREGONBUYS SOLICITATION NUMBER S-33000-00018034 Page 7 of 28

(iii) “Work Product” means every invention, discovery, work of authorship, trade secret or other tangible or intangible item, and all intellectual property rights therein, that ESCO is required to deliver to Agency pursuant to the Contract. See the “Definitions” section for the complete definition.

b. Work Product. All Work Product created by ESCO pursuant to the Contract, including derivative works and compilations, and whether or not such Work Product is considered a “work made for hire,” shall be the exclusive property of Agency. Agency and ESCO agree that Work Product that constitutes original works of authorship (the “Original Work Product”) is “work made for hire” of which Agency is the author within the meaning of the United States Copyright Act. If for any reason Original Work Product created pursuant to the Contract is not “work made for hire,” ESCO hereby irrevocably assigns to Agency any and all of its rights, title, and interest in all Original Work Product created pursuant to the Contract, whether arising from copyright, patent, trademark, trade secret, or any other state or federal intellectual property law or doctrine. Upon Agency’s reasonable request, ESCO shall execute such further documents and instruments necessary to fully vest such rights in Original Work Product in Agency. ESCO forever waives any and all rights relating to Original Work Product created pursuant to the Contract, including without limitation, any and all rights arising under 17 USC §106A or any other rights of identification of authorship or rights of approval, restriction or limitation on use or subsequent modifications. However, see Sections 12.c, 12.d, 12.e and 12.f immediately below, for provisions applicable to ESCO Intellectual Property, Third Party Intellectual Property, ESCO Intellectual Property derivative works and Third Party Intellectual Property derivative works.

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

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

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

f. ESCO Use of Work Product. Notwithstanding anything to the contrary in this Section 12, ESCO may refer to the Work Product in its brochures or other literature that ESCO uses for advertising purposes and, unless specified otherwise in Exhibit A – Phase 1 and Phase 2 Statement of Work and Delivery Schedule, Agency hereby grants to ESCO a non-exclusive, non-transferable, royalty-

AGENCY RFQ NUMBER 26-189 ESCO EPID; OREGONBUYS SOLICITATION NUMBER S-33000-00018034 Page 8 of 28 free license to use, reproduce, prepare derivative works based upon, distribute copies of, perform and display Agency-owned Work Product on other unrelated projects, except for any “Confidential Information” protected from disclosure under the provisions of Section 13 below, pertaining to Confidentiality and Non-Disclosure.

13. Confidentiality and Non-Disclosure

a. Confidential Information. ESCO acknowledges that it and its employees and agents may, in the course of performing their responsibilities under the Contract, be exposed to or acquire information that is confidential to Agency. Any and all information that Agency provides to ESCO or its employees or agents in the performance of the Contract that Agency designates as confidential (either on the document itself or through related correspondence), as well as all reports and other documents and materials (including software) that result from ESCO’s use of such information and any other Work Product that Agency designates as confidential, is deemed to be confidential information of Agency (“Confidential Information”). Confidential Information does not include information that (i) is or becomes (other than by disclosure by ESCO) publicly known; (ii) is furnished by Agency to others without restrictions similar to those imposed by the Contract; (iii) is rightfully in ESCO’s possession without the obligation of nondisclosure prior to the time of its disclosure under the Contract; (iv) is obtained from a source other than Agency without the obligation of confidentiality, (v) is disclosed with the written consent of Agency, or;

(vi) is independently developed by employees or agents of ESCO who can be shown to have had no access to the Confidential Information.

b. Non-Disclosure. ESCO agrees to hold Confidential Information in strict confidence, using at least the same degree of care that ESCO uses in maintaining the confidentiality of its own confidential information, and shall not, without Agency’s prior written consent, copy, reproduce, sell, assign, license, market, transfer or otherwise dispose of, give, or disclose Confidential Information to third parties, or use Confidential Information for any purposes whatsoever, other than the provision of Services to Agency hereunder. ESCO shall advise each of its employees and agents of their obligations to keep Confidential Information confidential. ESCO shall use reasonable efforts to assist Agency in identifying and preventing any unauthorized use or disclosure of any Confidential Information. ESCO shall advise Agency immediately if ESCO learns or has reason to believe that any person who has had access to Confidential Information has violated or intends to violate the terms this Section 13(b), and ESCO shall, at its expense, cooperate with Agency in seeking injunctive or other equitable relief in the name of Agency against any such person. ESCO agrees that, except as directed by Agency, ESCO will not at any time during or after the term of the Contract disclose, directly or indirectly, any Confidential Information to any person, except in accordance with the Contract, and that upon termination of the Contract or at Agency’s request, ESCO shall turn over to Agency all documents, papers, and other matter in ESCO's possession that embody Confidential Information. In the event ESCO is required to disclose Confidential Information pursuant to a subpoena or other legal process, ESCO shall notify Agency of such subpoena or other legal process, provide Agency with copies of any subpoena, other legal process and any other written materials supporting the subpoena or other legal process, and otherwise cooperate with Agency in the event Agency decides to oppose the disclosure of the Confidential Information. In the event Agency decides not to oppose such subpoena or other legal process or Agency’s decision to oppose the subpoena or legal process has not been successful, ESCO shall be excused from the confidentiality provisions of this Section, to the extent necessary to meet the requirements of the subpoena or other legal process controlling the required disclosure.

14. INDEMNITY.

AGENCY RFQ NUMBER 26-189 ESCO EPID; OREGONBUYS SOLICITATION NUMBER S-33000-00018034 Page 9 of 28

a. CLAIMS FOR OTHER THAN PROFESSIONAL LIABILITY. ESCO shall indemnify, defend, save, and hold harmless the State of Oregon, the Agency, their officers, agents and employees from any and all claims, suits, actions, losses, liabilities, damages, costs and expenses, including attorney fees, of whatsoever nature, resulting from or arising out of the acts or omissions of ESCO or its subcontractors, or their respective agents or employees, under the Contract.

b. CLAIMS FOR PROFESSIONAL LIABILITY. To the fullest extent permitted by law, and except to the extent prohibited under ORS 30.140(4), ESCO shall indemnify, defend, save, and hold harmless the State of Oregon, the Agency, and its members, their officers, agents and employees from any and all claims, suits, actions, losses, liabilities, damages, costs and expenses, including attorney fees, arising out of the professionally negligent acts, errors or omissions of ESCO or its subcontractors, or their respective agents or employees, in the performance of ESCO’s professional services under the Contract.

c. INDEMNITY FOR INFRINGEMENT CLAIMS. Without limiting the generality of section 14(a) or 14(b), ESCO expressly agrees to indemnify, defend, save and hold harmless the State of Oregon, the Agency and their agencies, subdivisions, officers, directors, agents, and employees from any and all claims, suits, actions, losses, liabilities, damages, costs and expenses, including attorney fees, arising out of or relating to any claims that ESCO’s services, the Work Product or any other tangible or intangible items delivered to agency by ESCO that may be the subject of protection under any state or federal intellectual property law or doctrine, or Agency’s use thereof, infringes any patent, copyright, trade secret, trademark, trade dress, mask work, utility design, or other proprietary right of any third party;

provided, that state shall provide ESCO with prompt written notice of any infringement claim. Provided, however, ESCO shall not be obligated to indemnify, defend, save and hold harmless the state and agency under this section 14(c), based solely on the following: ESCO’s compliance with Agency specifications or requirements, including, but not limited to the required use of tangible or intangible items provided by Agency.

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

e. AGENCY’S ACTS OR OMISSIONS. This section 14 does not include indemnification by ESCO of the State of Oregon, the Agency and its officers agents and employees, for the acts or omissions of the State of Oregon, the Agency and its officers agents and employees, whether within the scope of the Contract or otherwise.

AGENCY RFQ NUMBER 26-189 ESCO EPID; OREGONBUYS SOLICITATION NUMBER S-33000-00018034 Page 10 of 28

15. Insurance. ESCO shall carry insurance as indicated on Exhibit E for Phases 1 and 2, and as indicated for Phases 3 and 4 in the ECM Design and Implementation Contract Addenda to this Contract.

16. Termination

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

b. Agency's Right to Terminate for Convenience. Agency may, at its sole discretion, terminate the Contract, in whole or in part, upon 30 calendar days prior written notice to ESCO.

c. Agency's Right to Terminate for Cause. Agency may terminate the Contract, in whole or in part, immediately upon written notice to ESCO or at such later date as Agency may establish in such notice, upon the occurrence of any of the following events:

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

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

(iii) Agency and ESCO are unable to reach agreement on a PDP to proceed with the remaining phases of work;

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

(v) ESCO commits any material breach or default of any covenant, warranty, obligation or agreement under the Contract, fails to perform the Services under the Contract within the time specified or any extension thereof, or so fails to perform the Services as to endanger ESCO's performance under the Contract in accordance with its terms, and such breach, default or failure is not cured within 14 calendar days after Agency's notice to ESCO, or such longer period as Agency may specify in such notice.

d. ESCO's Right to Terminate for Cause.

(i) ESCO may terminate the Contract by giving written notice to Agency if Agency fails to pay

ESCO pursuant to the terms of the Contract and if Agency fails to cure within 14 calendar days after receipt of ESCO's written notice, or such longer period of cure as ESCO may specify in such notice.

(ii) ESCO may terminate the Contract, for reasons other than nonpayment, if Agency commits any material breach or default of any covenant, warranty, obligation or agreement under the Contract, fails to perform under the Contract within the times specified, or so fails to perform as to endanger ESCO's performance under the Contract, and such breach, default or failure is not cured within 14 calendar days after ESCO's notice to Agency, or such longer period as ESCO may specify in such notice.

e. Remedies.

(i) In the event of termination pursuant to Sections 16(a), 16(b), 16(c)(i), 16(c)(ii) or 16(d), ESCO's sole remedy (except as otherwise required by applicable state or federal law) shall be a claim for the sum designated for performing the Services multiplied by the percentage of Services completed and accepted by Agency (with acceptance by Agency not to be unreasonably withheld), less previous amounts paid and any claim(s) which state has against ESCO, except in the event of a termination under Section 16(c)(i) where no payment will be due and payable for Services performed or costs incurred after the last day of the current appropriations or limitations, consistent with Section 9, Funds Available and Authorized;

Payments. If previous amounts paid to ESCO exceed the amount due to ESCO under this subsection, ESCO shall pay all excess to Agency upon demand.

AGENCY RFQ NUMBER 26-189 ESCO EPID; OREGONBUYS SOLICITATION NUMBER S-33000-00018034 Page 11 of 28

(ii) In the event of termination pursuant to Section 16(c)(iii) or 16(c)(iv), Agency shall have any remedy available to it in law or equity. If it is determined for any reason that ESCO was not in default under Section 16(c)(iii) or 16(c)(iv), the rights and obligations of the Parties shall be the same as if the Contract was terminated pursuant to Section 16(b).

f. ESCO's Tender Upon Termination/Retained Remedies of Agency. Upon receiving a notice of termination of the Contract, ESCO shall immediately cease all activities under the Contract, unless Agency expressly directs otherwise in such notice of termination. Upon termination of the Contract, ESCO shall deliver to Agency all documents, information, works-in-progress and other property that are or would be deliverables had the Contract been completed. Upon Agency's request, ESCO shall surrender to anyone Agency designates, all documents, information, research, works-in-progress, Work Product and other property, that are deliverables or would be deliverables had the Contract been completed, that are in ESCO’s possession or control and may be needed by Agency to complete the Services.

17. Records Maintenance; Access. ESCO, and its subconsultants, shall maintain all fiscal records relating to the Contract in accordance with generally accepted accounting principles. In addition, ESCO shall maintain all other records pertinent to the Contract and the Project and shall do so in such a manner as to clearly document ESCO's performance. Agency, the Oregon Secretary of State's Office, the federal grantor agency (if any), the Comptroller General of the United States, and their duly authorized representatives shall have access, and ESCO shall permit the aforementioned entities and individuals access, to such fiscal records and other books, documents, papers, plans and writings of ESCO that are pertinent to the Contract to perform examinations and audits and make excerpts and transcripts. ESCO shall retain and keep accessible all such fiscal records, books, documents, papers, plans, and writings for a minimum of 10 years, or such longer period as may be required by applicable law, following final payment and expiration or termination of the Contract, or until the conclusion of any audit, controversy or litigation arising out of or related to the Contract, whichever date is later.

18. Performance Evaluations.

[To be developed by the Parties]

19. Compliance with Applicable Law. ESCO shall comply with all federal, state and local statutes, regulations, administrative rules, executive orders, ordinances and other laws applicable to the Services under the Contract, in effect at the time the Contract is executed and as may be amended, revised, enacted or adopted thereafter. Changes in these legal requirements after the execution of the Contract may or may not be the basis for modifications to ESCO’s schedule, scope and fee, depending on a reasonable assessment of the nature of the change, the extent to which the change was anticipated by ESCO or the Parties, and other circumstances then existing. Agency’s performance under the Contract is conditioned upon ESCO’s compliance with, and ESCO shall comply with, the obligations applicable to public contracts and intended for contractors under ORS 279C.505, ORS 279C.515, ORS 279C.520 and 279C.530, which are incorporated by reference herein. All rights and remedies available to Agency under applicable federal, state and local laws are also incorporated by reference herein and are cumulative with all rights and remedies under the Contract. Consultant, the Sub-Consultants, if any, and all employers providing Services, labor or materials under this Contract are subject employers under the Oregon workers' compensation law and shall comply with ORS 656.017. If conflicts are discovered among federal, state and local statutes, regulations, administrative rules, executive orders, ordinances and other laws applicable to the Services under the Contract, ESCO shall in writing request Agency to resolve the conflict. ESCO shall specify if the conflict(s) create a problem for the design or other Services required under the

20. Permits and Licenses:

AGENCY RFQ NUMBER 26-189 ESCO EPID; OREGONBUYS SOLICITATION NUMBER S-33000-00018034 Page 12 of 28

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

b. Permits and licenses required for the Project. ESCO shall obtain, hold and maintain during the term of the Contract all permits and licenses required for the Project (for example, permits from regulatory authorities and use permits or licenses from owners of real and personal property), but Agency shall pay for such permits and licenses. ESCO shall advise Agency throughout the course of the Project as to the necessity of obtaining all Project permits and licenses, the status of the issuance of any such permits and licenses, and any issues or impediments related to the issuance or continuation of any such permits and licenses.

21. Foreign Contractor. If ESCO is not domiciled in or registered to do business in the State of Oregon, ESCO shall promptly provide to the Oregon Department of Revenue and the Secretary of State Corporation Division all information required by those agencies relative to the Contract. Consultant shall demonstrate its legal capacity to perform the Services under this Contract in the State of Oregon prior to executing this Contract.

22. Force Majeure. Neither Agency nor ESCO shall be held responsible for delay or default in the performance of its obligations due to a cause beyond its reasonable control, including, but not limited to, fire, riot, acts of God, terrorist acts or other acts of political sabotage, or war where such cause was beyond the reasonable control of Agency or ESCO, respectively. ESCO shall, however, make all reasonable efforts to remove or eliminate such a cause of delay or default and shall, upon the cessation of the cause, diligently pursue performance of its obligations under the Contract.

23. Survival. All rights and obligations shall cease upon termination or expiration of the Contract, except for the rights and obligations set forth in Sections 5, 10, 11, 12, 13, 14, 16(e), 16(f), 17, 23, 24, 28 and 29 and all other rights and obligations which by their context are intended to survive.

24. Time is of the Essence. ESCO agrees that time is of the essence in ESCO’s performance of its obligations under the Contract.

25. Notice. Except as otherwise expressly provided in the Contract, any communications between the Parties hereto or notices to be given hereunder shall be given in writing by e-mail, by personal delivery, facsimile, or mailing the same, postage prepaid, to ESCO or Agency at the e-mail address, the delivery address or facsimile number set forth in the Contract, or to such other addresses or numbers as either Party may hereafter indicate in writing to the other. Any notice or day-to-day communication sent by e-mail shall be deemed received when it is sent. The recipient of any notice sent by e-mail shall reply by e-mail to confirm receipt of such notice. Any communication or notice made by personal delivery shall be deemed to be received when actually delivered. Any communication or notice properly addressed and mailed shall be deemed received 5 calendar days after the date of mailing. Any communication or notice delivered by facsimile shall be deemed received on the date of the notice of successful transmission generated by the transmitting machine. To be effective, such facsimile transmission must be confirmed by telephone notice to Agency’s Contract Administrator or ESCO’s representative, as applicable.

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

AGENCY RFQ NUMBER 26-189 ESCO EPID; OREGONBUYS SOLICITATION NUMBER S-33000-00018034 Page 13 of 28

27. Counterparts. The Contract may be executed in several counterparts, all of which when taken together shall constitute one agreement binding on all Parties, notwithstanding that all Parties are not signatories to the same counterpart. Each copy of the Contract so executed shall constitute an original.

28. Dispute Resolution and Errors & Omissions Claims Process. In the event of a dispute between the Parties regarding any aspect of the Contract or performance under the Contract, the Parties agree to attempt in good faith to resolve any such dispute through direct communications and negotiations.

a. Disputes Related to Construction Services. For the Construction services, the Parties agree to attempt resolving such disputes in accordance with the General Conditions Claims process.

c. Other Disputes. In the event good faith efforts do not resolve disputes, the Parties agree to make a good faith effort to determine if mediation might be productive in resolving any such dispute. If the Parties determine that mediating the dispute would be productive, the Parties agree to use reasonable efforts to establish an agreement through which such mediation proceeding could take place. In the event such a mediation proceeding takes place, the Parties acknowledge and agree that any mediator or mediators retained to assist the Parties in resolving any dispute will not have the power to issue a decision that will bind the Parties, but will merely act as a facilitator in the process of the Parties’ attempting to resolve the dispute through mutual agreement.

29. Governing Law; Venue; Consent to Jurisdiction. Governing Law; Venue; Consent to Jurisdiction.

This Contract shall be governed by, construed in accordance with and enforced in accordance with the laws of the State of Oregon without regard to principles of conflicts of law. Any claim, action, suit or proceeding (collectively “Claim”) between Owner and Consultant that arises from or relates to this Contract shall be brought and conducted solely and exclusively within the Circuit Court of Marion County for the State of Oregon; provided, however, if a Claim must be brought in a federal forum, then it shall be brought and conducted solely and exclusively within the United States District Court for the District of Oregon. In no event shall this “Governing Law; Jurisdiction; Venue” section be construed as a waiver by the State of Oregon of any form of defense or immunity, whether based on sovereign immunity, governmental immunity, immunity based on the Eleventh Amendment to the United States Constitution or otherwise.

ESCO, BY EXECUTION OF THIS CONTRACT, HEREBY CONSENTS TO THE IN PERSONAM

JURISDICTION OF SAID COURTS.

30. Amendments. Agency may amend the Contract to the extent permitted by applicable statutes and administrative rules and as mutually agreed upon by Agency and ESCO. Agency may agree to appropriate increases in the maximum compensation payable under the Contract, should any Agency-approved increase occur in the scope, character, schedule or complexity of Services as outlined in Exhibit A, Statement of Work and Delivery Schedule. ESCO shall not commence any Services authorized under an amendment, and the amendment is not effective, unless it is in writing, signed by the Parties and all approvals required by applicable law have been obtained.

31. False Claims

a. ESCO understands and acknowledges it is subject to the Oregon False Claims Act (ORS 180.750 to 180.785) and to any liabilities or penalties associated with the making of a false claim under that Act. By its execution of the Contract, ESCO certifies the truthfulness, completeness, and accuracy of any statement or claim it has made, it makes, it may make, or cause to be made that pertains to the Contract or the Project for which the Services are being performed, including but not limited to ESCO’s statement of proposal and any invoices, reports, or other deliverables.

b. ESCO shall…