CTCLUSI PSC-SAMPLE CONTRACT~2.pdf

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PROFESSIONAL SERVICES CONTRACT

BETWEEN

THE CONFEDERATED TRIBES OF COOS, LOWER UMPQUA & SIUSLAW INDIANS

AND

This Contract, effective as of , (the “Effective Date”), is entered into in Coos Bay, Oregon, between the Confederated Tribes of Coos, Lower Umpqua & Siuslaw Indians (“Tribe”) and (“CONTRACTOR”), for the provision of certain professional services, as specifically set forth herein.

1. PARTY REPRESENTATIVES AND CONTRACT DOCUMENTS

1.1 The Tribe’s Party representative for purposes of this Contract shall be the

CTCLUSI Tribal Chief Executive Officer (“CEO”). CONTRACTOR’s party representative for purposes of this Contract shall be:

Name:

Address:

Phone:

Email: ____________________________________________________

1.2 CONTRACTOR enters this Contract and remains throughout the term of this Contract an independent CONTRACTOR and not an employee.

1.2.1 CONTRACTOR is not subject to the day-to-day supervision of the Tribe but is contracted independently to complete the project(s) specifically described herein.

1.2.2 CONTRACTOR shall be directly responsible to the

for all purposes contractual, supervisory, and performance related under this Contract.

1.2.3 CONTRACTOR is not entitled to the rights of benefits afforded to Tribal employees, including, but not limited to, disability or unemployment insurance, workers’ compensation, medical insurance, annual or sick leave, or any other employment benefit accorded to Tribal employees.

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1.2.4 CONTRACTOR is responsible for providing, at CONTRACTOR’s expense, employer’s taxes, applicable worker’s compensation and unemployment insurance, appropriate liability insura nce, and applicable licenses for CONTRACTOR.

1.3 Contract documents consist solely of this written Contract signed by both parties, and any attachments specifically referenced herein.

2. TERM The term of this Contract shall be until or when the parties mutually agree that the CONTRACTOR has completed the services to be performed under this Contract, as described in Attachment A, whichever comes first.

3. SERVICES TO BE PERFORMED BY CONTRACTOR

3.1 Services to be performed by CONTRACTOR are set forth in the scope of work, marked as Attachment A and incorporated herein by this reference.

However, if a conflict arises between this Contract and Attachment A, the terms and conditions contained in this Contract shall control.

3.2 CONTRACTOR shall adhere to all laws, regulations, or standards applicable to such work in the performance of this Contract.

3.3 CONTRACTOR shall also be bound to all conditions, requirements, limitations, and other provisions of Attachment A. However, if a conflict arises between this Contract and Attachment A, or any other attachments, the terms and conditions contained in this Contract shall control.

3.4 Standard of Performance:

3.4.1 All Services generated under this Contract by CONTRACTOR, outside consultants, or subcontractors, shall be based upon CONTRACTOR’s knowledge, experience, and professional judgment and shall be performed with the standard degree of skill and care exercised by members of the same profession currently practicing on similar projects and under similar circumstances.

3.4.2 CONTRACTOR shall provide the services set forth herein consistent with the standard of skill and care ordinarily provided by like professionals within this geographic region.

3.4.3 CONTRACTOR shall ensure all Services generated under this Contract are performed in compliance with all applicable national, federal, state, municipal laws, regulations, codes, ordinances, orders and with those of any other body having jurisdiction, and the CONTRACTOR shall be fully responsible for providing Services that are complete and adequate for the purposes intended by the Tribe.

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4. COMPENSATION

4.1 The Tribe shall compensate CONTRACTOR in the amount not to exceed

______________plus expense reimbursement in an amount of _______________ for a total not to exceed , __________________________.

as set forth in the reference determined by the Scope of Work and Compensation Schedule, marked A and B, incorporated herein. However, if a conflict should arise between this Contract and the terms and conditions contained in this Contract shall control.

4.2 No later than one calendar month after the services are performed and in any event within the same fiscal year, CONTRACTOR shall submit for approval monthly statements in the form of invoices to the Tribe. Payment of compensation and reimbursement of expenses shall be made within 30 days or within an alternative timeframe as mutually agreed upon from the date of receipt of CONTRACTOR’s invoice. CONTRACTORS’s invoice shall include copies of receipts for all reimbursable expenses. All invoices shall be itemized and verified by CONTRACTOR.

4.3 Compensation to CONTRACTOR shall be made in accordance with standard CTCLUSI operating procedures.

4.4 In the event that this Contract is terminated before completion of the Contract term, CONTRACTOR shall receive such compensation as is due under this Contract to the date of termination set forth in such notice, so long as the CONTRACTOR is performing in conformity with the terms of this Contract and all Tribal property is returned to the Tribe.

4.5 Advanced written approval shall be obtained from the Tribe for additional amounts for fees and expenses.

4.6 CONTRACTOR shall also be bound to all conditions, requirements, limitations and other provisions of Attachment B. However, if a conflict arises between this Contract and Attachment B, or any other attachments, the terms and conditions contained in this Contract shall be control.

4.7 The Tribe shall reimburse CONTRACTOR for all reasonable and necessary expenses incurred that are incidental to the performance of this Agreement, including air fare at coach rates; lodging at GSA rates; "standard" car rental or equivalent and cost of gasoline when a private car is not used; mileage based on the then-existing standard rate set forth by the Internal Revenue Service when a private car is used; large volume document printing or reproduction; postage/ and; specialized on-line research. Reimbursable expenses shall not include office overhead expenses such as rent, light or heat.

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5. GENERAL PROVISIONS

5.1 Integration. This Contract expresses the complete understanding of the parties, and supersedes all other Contracts, either oral or in writing, between the parties with respect to the terms of this Contract. Each party to this Contract acknowledges that no representation, inducements, promises, or other agreements, orally or otherwise, have been made by any party, or anyone dealing on behalf of any party, which are not embodied herein; and that no other agreement, statement, or promise not contained in this Contract shall be valid or binding on either party, except that any other written Contract dated concurrent with of after this Contract shall be valid as between the signing parties.

5.2 Modifications. Any modification of this Contract will be effective only if it is in writing and signed by both parties. The Tribe is under no obligation to compensate CONTRACTOR for any services or expenses in the absence of a written modification signed by the Tribe.

5.3 Property of the Parties

5.3.1 All records, of any nature, whether existing at the time of this Contract, produced through the efforts of the CONTRACTOR in furtherance of the services provided under this Contract, or obtained by CONTRACTOR from any other source in furtherance of services provided under this Contract, and whether prepared by the CONTRACTOR or otherwise, shall remain the exclusive property of the Tribe.

5.3.2 All Tribal equipment, books, and files/records utilized by CONTRACTOR in performing CONTRACTOR’s duties under this Contract shall be returned immediately to the Tribe by CONTRACTOR upon the expiration or termination of this Contract, regardless of whether any dispute exists between the Tribe and CONTRACTOR at and/or following the expiration or termination of this Contract.

5.3.3 Intellectual Property.

5.3.3.1 CONTRACTOR agrees that ownership of all materials developed under this Contract shall be in the Tribe.

5.3.3.2 CONTRACTOR may retain all personal notes relating to work under this Contract and may retain copies of documents generated by CONTRACTOR pursuant to this Contract;

provided, however, that copies of all notes and ORIGINAL copies of all documents created in the performance of this Contract, shall be provided to the Tribe.

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5.4 NON-DISCLOSURE AGREEMENT. The Tribe agrees to furnish CONTRACTOR, or CONTRACTOR has agreed to develop, in the performance of this Contract and on behalf of the Tribe, certain confidential information relating to the Tribe's governmental affairs and Enterprises. The Tribe desires to prevent the unauthorized disclosure of confidential information, as defined below:

5.4.1 Definition. For the purposes of this Contract, "Confidential Information” shall mean any and all information or material of a Party, whether revealed orally, visually, or in tangible or electronic form, that is not generally known or available to the public, including but not limited to information that contains or relates to (i) a Party's finances, including pricing, costs, revenues and expenses, (ii) personnel, employees, consultants and contractors, (iii) marketing strategies, sales and marketing data, customer lists (including the identity of actual and potential customers) and supplier lists (including the identity of actual and potential suppliers), (iv) operations, business procedures, know-how and capabilities, (v) product designs, drawings, specifications and computer code, (vi) future technical, business, and marketing plans, and product strategies, v(iii) information pertaining to the location of the Tribe's cultural resources, including but not limited to archaeological sites, sacred sites and traditional cultural sites and (viii) any information not set forth in clauses (i) through (vii) that would qualify under law for protection as a trade secret or as privileged. ln addition to the foregoing, Confidential lnformation shall include this Contract and its terms, that any discussions and/or negotiations are taking place between the parties regarding the purpose of this Contract, as well as any information in any form or media that is marked physically or electronically as "confidential" or with words of similar effect as well as all information that the Disclosing Party identifies as confidential at the time of oral disclosure.

5.4.2 The party receiving Confidential lnformation hereunder is referred to as the "Receiving Party" and the party disclosing Confidential lnformation hereunder is referred to as the "Disclosing Party." Confidential lnformation shall not include information which the Receiving Party demonstrates: (i) is widely known by the public through no breach of this Contract or other act by the Receiving Party; or (ii) the Receiving Party rightfully knew prior to the time that it was disclosed to Receiving Party hereunder; or (iii) the Receiving Party received from a third party lawfully possessing and lawfully entitled to disclose such information without breach of this Contract.

5.4.3 Obligations of Confidentiality. The Receiving Party will maintain the Disclosing Party's Confidential lnformation, as well as any notes or

6 Professional Services Contract documents prepared by the Receiving Party that contain, summarize or are otherwise based upon the Confidential lnformation ("Work Product"), in the strictest confidence and,

(i) except with the prior written consent of the Disclosing Party, will not disclose such Confidential lnformation or Work Product to any third party, or,

(ii) except as is reasonably necessary to evaluate the Business Purpose, Without the prior written consent of the Disclosing Party, will not use or reproduce such Confidential lnformation or Work Product. The Receiving Party will maintain all of the Disclosing Party's Confidential lnformation and Work Product in a safe and secure manner, using physical, virtual and cyber security measures consistent with best industry practice. The Receiving Party will use all commercially reasonable steps to protect the Disclosing Party's Confidential lnformation and Work Product from unauthorized or inadvertent disclosure, but in any event, steps no less stringent than it uses to protect its own similar Confidential lnformation.

Notwithstanding anything in the foregoing, the Receiving Party may disclose the Disclosing Party's Confidential lnformation to the Receiving Party's affiliates, officers, directors, partners, employees, accountants, lawyers, advisors and other consultants or representatives (collectively "Related Persons"), but only to the extent necessary to pursue the Business Purpose. Each Receiving Party will ensure that all of its Related Persons that receive any Confidential lnformation of the Disclosing Party shall be obligated to maintain such Confidential lnformation in strictest confidence and otherwise in accordance with the terms of this Contract.

The Receiving Party shall be responsible for any acts or omissions of its Related Persons that violate the terms of or result in a breach of this Contract.

5.4.4 Return of Materials. Upon the written request of a Disclosing Party at any time, the Receiving Party shall, as the Disclosing Party may elect, promptly (i) return to the Disclosing Party or (ii) certify the destruction of all Confidential Information and copies thereof in the possession of the Receiving Party or any of its Related Persons, provided, however, that Confidential lnformation of a Disclosing Party disclosed in digital or other electronic form, and any digital or other electronic copies thereof made by the Receiving Party or any of its Related Persons, must be destroyed using then-industry-standard methods for such destruction.

5.4.5 Notification of Disclosure. lf either Party discovers any actual or threatened disclosure of the other Party's Confidential lnformation or Work Product, the Party making such discovery shall promptly notify the other and the Party responsible for, or that caused, any such disclosure shall, at its own expense, use all reasonable efforts to remedy any actual disclosure and to prevent any future disclosure.

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5.4.6 Excluded Confidential lnformation. The obligations imposed by this Contract shall not apply with respect to any portion of Confidential lnformation or Work Product which (i) has been approved in writing for release by the Disclosing Party; or (ii) is required to be disclosed pursuant to law or to a final and binding order of a governmental agency or court of competent jurisdiction, provided that the Disclosing Party has been given reasonable notice of the pendency of such disclosure and the opportunity to object, the Receiving Party discloses only such Confidential Information or Work Product as must be disclosed under the circumstances, and the Receiving Party uses its reasonable efforts to secure confidential treatment of such Confidential lnformation or Work Product.

5.4.7 OBLIGATIONS.

5.4.7.1 CONTRACTOR agrees to review, examine, inspect, or obtain such confidential information solely for advising the Tribe, and otherwise to agrees to hold such information pursuant to the terms of this Contract.

5.4.7.2 CONTRACTOR shall hold and maintain confidential

information in strictest confidence for the sole and exclusive benefit of the Tribe.

5.4.7.3 CONTRACTOR shall restrict access to confidential

information to employees, contractors and subcontractors, and third parties as is reasonably required, and shall require those persons to sign nondisclosure restrictions at least as protective as those in this Contract.

5.4.7.4 CONTRACTOR, without advanced written approval of the Tribe, shall not use for CONTRACTOR's own benefit, publish, copy, or otherwise disclose to others, or permit the use by others for their benefit or to the detriment of the Tribe, any confidential information.

5.4.7.5 CONTRACTOR shall return or provide to the Tribe, upon written demand by the Tribe, all confidential information, including all records, reports, notes, photographs, sketches, drawings, models, memoranda, and other written, printed, or tan8ible materials in CONTRACTOR's possession pertaining to confidential information.

5.4.8 These nondisclosure provisions shall survive the termination of this Contract, and CONTRACTOR'S duty to hold confidential information in

8 Professional Services Contract rev. 2/26 confidence shall remain in effect for 10 years, or until the Tribe provides CONTRACTOR written notice releasing CONTRACTOR from this non-disclosure Contract, whichever occurs first.

5.4.9 Any breach of confidentiality shall be considered serious and subject to investigation and to possible termination of this Contract, and appropriate legal action, including, but not limited to, recovery of damages and reasonable attorney's fees and expenses.

5.5 WAIVER

5.4.1 The failure of either party to insist on strict compliance with any terms, covenants, or conditions of this Contract by the other party shall not be deemed waiver of that term, covenant, or condition; nor shall any waiver or relinquishment of any right or power at any one time or times be deemed a waiver or relinquishment of that right or power of all and or any other times.

5.4.2 Nothing in this Contract shall be construed to waive the Tribe’s sovereign immunity from suit.

5.6 SEVERABILITY. If any word, phrase, or provision in this Contract is held by the Tribal Court of the Coos, Lower Umpqua and Siuslaw Indians to be invalid, void, or unenforceable, the remaining provisions shall continue in full force without being impaired or invalidated in any way.

5.7 GOVERNING LAW. The laws of the Confederated Tribes of Coos, Lower Umpqua and Siuslaw Indians and federal laws shall govern this Contract, without reference to conflicts of law rules. To the extent the laws of the Confederated Tribes of Coos, Lower Umpqua and Siuslaw Indians and federal laws do not address the relevant issues, the laws of the state of Oregon shall apply. The parties agree that the Tribal Court of the Confederated Tribes of Coos, Lower Umpqua and Siuslaw Indians shall be the proper forum and venue.

5.8 INDEMNIFICATION

5.8.1 CONTRACTOR shall at its own expense, promptly reimburse the Tribe for the defense of, and hold the Tribe and its officers and employees harmless from and against any and all claims, actions, liabilities, losses, damages, judgments, grants, costs, and expenses (including reasonable attorney’s fees) arising out of injury or death to persons, or damage to property but only to the extent caused by the negligence or misconduct of CONTRACTOR and its principals, officers, employees, agents, assigns, and subcontractors in the performance of obligations arising under this Contract, provided the Tribe promptly notifies Contractor in writing of any such claim, provided that CONTRACTOR shall have the exclusive right to control the defense, and the amount does not exceed and is otherwise

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5.8.2 The Tribe shall promptly reimburse CONTRACTOR for the defense of, and hold the CONTRACTOR and its officers and employees harmless from and against any and all claims, actions, liabilities, losses, damages, judgments, grants, costs, and expenses (including reasonable attorney’s fees) arising out of injury or death to persons, or damage to property but only to the extent caused by the negligence or misconduct of the Tribe and its officials, employees, agents, and subcontractors in the performance of obligations arising under this Contract, provided: (i) the Contractor promptly notifies the Tribe in writing of any such claim; (ii) the Tribe shall have the exclusive right to control the defense; and (iii) the amount does not exceed and is otherwise covered by the Tribe’s liability insurance.

5.9 INSURANCE. The CONTRACTOR will required to maintain, during the term and each renewal or extension of this Contract, at its own expense, the following insurance: (i) statutory workers’ compensation insurance or equivalent industrial accident insurance covering all employees as required by law; (ii) commercial automobile liability coverage (if the use of automobiles is required) for all owned, hired, borrowed, leased, or non-owned automobiles, providing bodily injury and property damage liability coverage with a combined single limit of $1,000,000; and (iii) commercial general liability insurance (including, but not limited to, premises operations, property damage, products/completed operations, contractual liability, and personal injury) with limits of at least $1,000,000 per occurrence/ $2,000,000 annual aggregate.

Proof of insurance coverage shall be provided upon the Tribe’s request.

5.10 TERMINATION

5.10.1 Either party may terminate this Contract at any time with or without cause upon providing the other party written notice or by mutual agreement. Any written notice of termination shall be delivered to the party representative via electronic transmission, with a copy to follow by first class mail.

5.10.2 In the event of the death or disability of CONTRACTOR, this Contract may be terminated by the Tribe, and the Tribe shall pay to the administrator or personal representative of CONTRACTOR's estate any compensation due CONTRACTOR hereunder.

5.11 THIRD PARTY BENEFICIARY. No third party shall be a beneficiary of a party’s rights or benefits under this Contract.

5.12 TIME IS OF THE ESSENCE. Time is of the essence for all purposes of this Contract.

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5.13 FORCE MAJEURE. In the event of a Force Majeure, the parties shall be relieved of their respective obligations affected by such Force Majeure (other than an obligation to pay any fees or other amounts accruing prior to the occurrence of the Force Majeure) to the extent that and for so long as, such parties are prevented, hindered or delayed in the performance of such obligations by such Force Majeure, but only if the party so affected gives prompt notice to the other party upon discovery of such act or condition and promptly exercises commercially reasonable efforts to overcome or cure such act or condition to the extent it is within its power to effect such cure.

5.14 NO REPRESENTATIONS. Each party acknowledges and agrees that it has not relied upon any statements, representations, contracts, agreements, or warranties except such as are expressed in this Contract.

5.15 GOOD FAITH AND FAIR DEALING. Each party agrees to act in good faith in dealing with one another pursuant to this Contract, and each party hereby covenants to the other that it shall not undermine the rights of the other Party hereto with respect to the Contract.

5.16 COUNTERPARTS. This Contract may be signed in counterparts, each of which may be deemed an original, and all of which together constitute one and the same agreement. Digitized or electronic signatures that are duly affixed with the knowledge and consent of the individual whose signature is represented will be deemed valid for all purposes. Delivery of a signed counterpart in any digitized or electronic format (e.g., PDF) by electronic mail or other electronic means, or delivery of a signed counterpart by facsimile, will be deemed effective delivery for all purposes

5.17 GRATUITIES AND KICKBACKS. It shall be a breach of ethical standards for any person, business or Organization to offer, give or agree to give any current or former officer, agent, or employee, or for any current or former officer, agent, or employee to solicit, demand, accept, or agree to accept from another person, a gratuity or an offer of employment in connection with any decision, approval, disapproval, recommendation, preparation of any part of a program requirement or a purchase request, influencing the content of any specification or procurement standard, rendering of advice, investigation, auditing or in any other advisory capacity in any proceeding or application, or any other particular matter, pertaining to any program requirement, contract, subcontract, or to any solicitation or proposal for a contract or subcontract.

5.17.1 It shall be a breach of ethical standards for any payment, gratuity or offer of employment (kickback) to be made by or on behalf of a vendor, contractor or subcontractor to a higher level of contractor as an inducement for the award of a subcontract or order for procurement.

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5.18 CRIMINAL BACKGROUND CHECK. A criminal background check will ________ required of the CONTRACTOR for services performed under this contract. The CONTRACTOR shall comply with all background screening requirements when notified, in writing by the TRIBE. Failure to successfully complete any required background screening may result in suspension of work, modification of scope, or termination of this contract.

IN WITNESS HEREOF, we the undersigned have executed this Contract:

THE CONFEDERATED TRIBES OF COOS,

LOWER UMPQUA AND SIUSLAW INDIANS

CONTRACTOR

By:

Lee Ann Wander Chief Executive Officer

Date:

By:

Date: