Exhibit S Sample Master Services & Equipment Agreement.pdf

Exhibit S, 1

EXHIBIT S

SAMPLE MASTER SERVICES AND EQUIPMENT AGREEMENT

This Master Services Agreement (“Agreement”`) is entered into by and between the NORTHERN WASCO

COUNTY PEOPLE’s UTILITY DISTRICT, a people’s utility district created and existing under the laws of the State of

Oregon, with its principal offices at 2345 River Road, The Dalles, Oregon 97085 (the “District”), and Contractor

(the “Contractor”). The term “Party” refers to either the District or Contractor, and the term “Parties” refers to both the District and the Contractor.

RECITALS

WHEREAS, the District desires to retain the Contractor because of the particular training, knowledge, skill, expertise, and experience offered by the Contractor; and

WHEREAS, the Contractor has agreed to deliver its services in or near The Dalles, Oregon.

AGREEMENTS

NOW, THEREFORE, in consideration of the foregoing and the mutual covenants and promises contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the District and the Contractor agree as follows:

1. Effective Date, Term, and Termination

This Contract shall become effective once it has been signed by the Parties and on the date of the last signature below ("Effective Date”).

Unless terminated or extended, this Agreement shall expire when the District accepts the Contractor's performance as complete (“Final Acceptance”) or on ____/____/20___, whichever date occurs first.

The District may terminate this Contract at any time by giving the Contractor written notice of such termination no less than thirty (30) days prior to the effective date of such termination. If so terminated, neither Party shall have further obligations hereunder after the date of such termination, except that the District agrees to pay the

Contractor for the Services and Deliverables provided prior to the effective termination date if such work was performed in accordance with this Agreement.

Expiration and termination shall not extinguish or prejudice the District’s right to enforce this Agreement against the Contractor with respect to the Contractor’s breach of any warranty or representation, or default, defect, or nonconformity with this Agreement that has not been cured.

Exhibit S, 2

2. Services and Deliverables

The Contractor shall, in accordance with the provisions of this Agreement, and any such Exhibits that may from time to time be executed and delivered by the Contractor and District pursuant to this Agreement, furnish the

District with such services as may be determined by the District and the Contractor and enumerated and described in said Agreement and Exhibits (“Services”). All Exhibits, once duly executed, shall be incorporated into and form a part of this Agreement and shall be subject to all the terms and conditions of this Agreement. In the event of any conflict between the terms of this Agreement and the terms of any Exhibit, the terms of such

Exhibit shall govern for purposes of such Exhibit. Otherwise, the terms of this Agreement shall govern.

Exhibit A shall be the initial Scope of Work and shall specify: (i) a description of the particular Services to be performed by the Contractor, assigned staff, rate and material costs, and estimated level of effort; (ii) name, address, and telephone number of the Contractor’s project manager(s) or primary contact(s) responsible for the

Contractor's work under this Agreement, who shall be familiar with the terms of this Agreement and who shall have the technical knowledge to perform the Services; (iii) the deliverables, documentation and other material to be produced (collectively “Deliverables”); and (iv) such additional terms and conditions as the Parties may mutually agree upon.

Any additions or changes to this Agreement or any Exhibits shall be in writing and signed by the Parties (“Change

Order”) prior to the Contractor undertaking such additional or changed work, Services, or Deliverables. Any work performed by the Contractor that has not been approved by the District through a Change Order as specified in this Agreement shall not be reimbursable.

3. Compensation, Billing, and Payments

The District will compensate the Contractor for the Services and Deliverables in accordance with the rates and costs specified in this Agreement and applicable Exhibit(s).

The District shall compensate the Contractor on a not-to-exceed basis; which shall be established through individual Purchase Orders (“POs”) issued by the District. Each PO shall reference this Master Agreement and specify the schedule and the maximum compensation authorized for that work. The Contractor shall not perform work or incur costs in excess of the amount authorized in an issued PO without prior written authorization from the District. All POs must explicitly reference this Agreement. All equipment delivery and installation are subject to the terms and conditions of this Agreement and related PO terms and conditions, see

Exhibit E for details.

The District shall pay the Contractor not more than once per month, upon the Contractor's submission of a sufficiently detailed invoice for Services and Deliverables supplied to the District during that month. Each invoice shall include: (i) detailed description, including name, job title, and reference to the specific work activity or the Services or Deliverables the Contractor supplied to the District in accordance with the agreed upon unit rates provided in Exhibit B; and (ii) total dollar amount invoiced to date by the Contractor prior to the current invoice. Invoices shall be submitted to the District via e-mail at accountspayable@nwascopud.org with the

Agreement number in the subject line.

The District will review each such invoice for compliance with these requirements and any other pertinent provisions of this Agreement and may reject the invoice for non-compliance until the Contractor cures the defects. Release of payment by District is not acceptance of Services or Deliverables but only acceptance that all invoice requirements have been met. The District will make payment in accordance with its regular payment

Exhibit S, 3 schedule, but within thirty (30) calendar days from receipt of a compliant and undisputed invoice. The beginning of the District’s 30-day payment period provided under this Section will be tolled until the District receives an invoice that complies with this Section.

4. Services Review, Acceptance, and Deficiencies

The District may, at any time during the term of the Agreement, review and inspect the Services and

Deliverables provided by the Contractor for compliance with this Agreement and all Exhibits. If the District determines, in its sole discretion, that any of the Services or Deliverables are deficit, non-conforming with the terms of this Agreement, or otherwise not acceptable and that any deficiencies are the responsibility of the

Contractor, the District shall prepare and deliver to the Contractor a Notice of Deficiency that includes a detailed written description of any deficiencies or non-conformities and provides the Contractor with a time frame for correction. The Contractor shall correct any deficiencies at no cost to the District and within the time frame identified by the District.

Failure of the Contractor to remedy the deficiencies identified in the Notice of Deficiency or to supply the

Services or Deliverables in accordance with this Agreement and Exhibits may amount to a default and cause the

District to terminate the Agreement. In the event of such termination, the District may (i) require the Contractor to reimburse monies paid (based on the identified portion of deficient Services or Deliverables received), and (ii) recover associated damages, including the amount of completion costs, damages, expenses, legal fees, or any other costs incurred by the District due to default by the Contractor, which shall be charged against any outstanding amounts under this Agreement. If any amounts due to the District exceed the value of the

Agreement between District and the Contractor, the Contractor shall pay the excess amount immediately upon demand of the District.

When the District determines that all Services and Deliverables are in accordance with this Agreement and

Exhibits, the District shall notify the Contractor that final acceptance (“Final Acceptance”) of all Deliverables has occurred.

5. Insurance

The Contractor, at its sole cost and expense, shall obtain and maintain the following minimum insurance coverages. The District may request additional or other coverage, as the District deems necessary and appropriate for the Services the Contractor is providing under this Agreement.

a. Workers’ Compensation and Employers’ Liability. Unless classified as exempt under applicable laws, all employers, including the Contractor, shall provide workers’ compensation insurance as required by applicable workers’ compensation laws for persons performing work under this

Agreement, including Employers’ Liability Insurance with limits not less than $500,000 each accident. The Contractor shall require and ensure that each of its authorized subcontractors complies with these requirements.

b. Professional Liability. The Contractor shall maintain Professional Liability insurance covering any damages caused by an error, omission or any negligent acts arising out of the Contractor’s performance of professional services. Combined single limit per occurrence shall not be less than

$2,000,000. Annual aggregate limit shall not be less than $2,000,000.

Exhibit S, 4

This coverage must include errors, omissions, negligent acts, denial of service, media liability

(including software copyright), dishonesty, fraudulent or criminal acts by a person or persons whether identified or not, intellectual property infringement, computer system attacks, unauthorized access and use of computer system, regulatory actions, and contractual liability.

Coverage must extend to business associates and independent contractors providing professional services on behalf of or at the direction of the Contractor. A primary policy or combination of a primary policy and excess policy is acceptable to meet the limits requirement under this Section.

c. Commercial General Liability. The Contractor shall provide Commercial General Liability Insurance covering bodily injury, death and property damage in a form and with coverage that are satisfactory to the District. This insurance coverage must include personal injury liability, products and completed operations, and contractual liability coverage, in each case arising out of the Contractor’s negligence. Coverage must be written on an occurrence basis in an amount of not less than

$2,000,000 per occurrence and $4,000,000 annual aggregate.

d. Automobile Liability Insurance. The Contractor shall provide Automobile Liability Insurance covering all owned, non-owned, or hired vehicles with a combined single limit of not less than

$1,000,000 for bodily injury and property damage.

e. Tail Coverage. If any of the required insurance is on a claims-made basis and does not include an extended reporting period of at least 24 (twenty-four) months, the Contractor shall maintain either tail coverage or continuous claims made liability coverage, provided the effective date of the continuous claims made coverage is on or before the Effective Date of this Agreement, for a minimum of twenty-four (24) months following the later the Contractor’s completion and the

District’s Final Acceptance of all Services required under this Agreement.

f. Certificates, Additional Insured, and Proof of Insurance. The Contractor shall provide to the District

Certificates of Insurance for all required insurance before performing any Services or Deliverables required under this Agreement. The Certificates must list the “Northern Wasco County People’s

Utility District and its directors, officers, employees, and agents” as a Certificate holder and as

Additional Insureds, specify that the Contractor will pay for all deductibles, self-insured retention and self-insurance, if any, that all coverage will be primary and non-contributory with any other insurance and self-insurance, and Contractor that either an extended reporting period of at least twenty-four (24) months is provided on all claims made policies or that tail coverage is provided. As proof of insurance, the District has the right to request copies of insurance policies relating to the insurance requirements in this Agreement. the Contractor’s failure to provide certificates of insurance as specified in Section 5 of this Agreement does not constitute the District’s waiver of the insurance requirements. Any waiver of the insurance requirements by the District shall be made in writing.

g. Notice of Change or Cancellation. The Contractor shall provide at least thirty (30) calendar days’ written notice to the District before cancellation of, material change to, potential exhaustion of aggregate limits of, or non-renewal of the required insurance coverages. Any failure to provide such notice shall constitute a material breach of this Agreement and may be grounds for immediate termination of this Agreement by the District without further notice.

Exhibit S, 5

h. Waiver of Subrogation. The Contractor hereby waives all rights of subrogation against the District and its officers, employees, directors, and agents for recovery of damages to the extent those damages are covered by any insurance policies the Contractor is required to maintain under this

Agreement. Policies of insurance the Contractor is required to purchase and maintain under this

Agreement shall not prohibit this waiver of subrogation. Alternatively, the Contractor agrees to obtain, at its own cost and expense, and deliver to the District copies of any endorsements necessary to effectuate such a waiver under the applicable insurance coverage. If applicable, umbrella excess must be endorsed with waivers of subrogation language to ensure it follows form of coverage of primary insurance.

The Contractor hereby agrees to periodic review of insurance requirements by the District under this Agreement and to meet updated requirements as mutually agreed upon by the Contractor and the District.

6. Indemnity and Limitation of Liability

Subject to the limitations of ORS 30.140, the Contractor shall defend, save, hold harmless, and indemnify the

District and its officers, directors, 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 the Contractor or its officers, employees, subcontractors, or agents under this Agreement including, any claim against the District, which, if true, would constitute a breach by the Contractor of any of the representations, warranties, or covenants set forth in this Agreement.

THE DISTRICT’S LIABILITY FOR ANY AND ALL CLAIMS, SUITS, AND ACTIONS FOR ANY TYPE OF DAMAGES ARISING

AGAINST THE DISTRICT UNDER OR RELATING TO THIS AGREEMENT SHALL, AT ALL TIMES, BE SUBJECT TO THE

LIMITATIONS OF LIABILITY FOR PUBLIC BODIES UNDER THE OREGON LAW. NOTHING IN THIS AGREEMENT

SHALL BE CONSTRUED AS A WAIVER BY THE DISTRICT OF ANY STATUTORY NOTICE OR DEFENSE OR IMMUNITY

FROM ANY CLAIM AGAINST THE DISTRICT.

7. Contact Persons

All notices required to be given by this Agreement shall be in writing and shall be sufficiently given if personally delivered or if sent by certified mail, postage prepaid, with a copy by electronic mail, addressed as follows:

If to District:

Name Chris Walker

Title Broadband & IT Manager

Company Northern Wasco County People’s Utility District

Address 2345 River Road, The Dalles, OR 97058

Phone 208-699-1031

Email Chris-walker@nwascopud.org

Exhibit S, 6

Name Sandra Chidiac

Title Purchasing Manager

Company Northern Wasco County People’s Utility District

Address 2345 River Road, The Dalles, OR 97058

Phone 541-394-3014

Email Sandra-Chidiac@nwascopud.org

If to the Contractor:

Name

Title

Company

Address

Phone

Email

Any such mailed notice or communications, including electronic, shall be deemed to have been effectively given upon receipt. Any address set forth in this Section may be changed by written notice of such change provided as contemplated in this Section.

8. Independent Contractor

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

9. Subcontracts

The Contractor shall not enter into any subcontracts for any of the Services or Deliverables required by this

Agreement without the District’s prior written and signed authorization. In addition to any other provisions the

District may require, the Contractor shall include in any authorized subcontracts under this Agreement a requirement that the subcontractor shall be bound by Sections 5, 6, 10, and 12 of this Agreement as if the subcontractor were the Contractor. District’s consent to any subcontractor shall not relieve the Contractor of any of its duties or obligations under this Agreement.

Exhibit S, 7

10. Responsibilities, Representations, and Warranties

The Contractor represents and warrants to the District that:

a. The Contractor is a highly skilled expert in performing the Services and providing the Deliverables required under this Agreement and that the Contractor is competent to know which materials, methods, apparatuses, procedures, notifications, practices, and coordination protocols are required, necessary, suitable, and advisable to perform the Services and Deliverables described in this

Agreement;

b. The Contractor will utilize the materials, methods, apparatuses and follow the procedures, notifications, practices, and coordination protocols, including safety practices and protocols, that are required, necessary, suitable, and advisable to perform the Services and Deliverables described in this Agreement;

c. The Services and Deliverables, including all engineering, design and other similar work, will be (i) designed, furnished, and performed (A) in accordance with Professional Standards and (B) in compliance with the provisions of this Agreement and all applicable legal requirements; and (ii) free from defects in workmanship and material. “Professional Standards” means those standards and practices used by, and the degree of skill and judgment exercised by, well recognized United States design and engineering firms practicing in the heavy civil industry and performing high-quality services similar to the Services and Deliverables, under similar circumstances near the same time and in the same geographical region;

d. The Contractor is duly licensed to provide the Services and Deliverables and will maintain at its own expense all required licenses, certifications and permits necessary to deliver Services under this

Agreement;

e. The Services and the Deliverables provided by the Contractor pursuant to the Agreement will materially comply with any service descriptions, specifications, standards or requirements set forth in this Agreement;

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

g. The Contractor will comply with all federal, state, and local laws, ordinances, rules, and regulations applicable to its performance under this Agreement. The District’s performance under this

Agreement is specifically conditioned upon the Contractor’s compliance with the applicable provisions of District Policy, Admin Regulations, and ORS Chapter 279 A, B, and C, which are hereby incorporated by reference;

Exhibit S, 8

h. All Services under this Agreement are subject to prevailing wage rates and all workers providing labor for the Services shall be paid not less than the prevailing minimum hourly rate of wage for the same character of work in the same trade located in The Dalles, Oregon. Contractor will include the requirement to pay prevailing wages as a material provision in every contract with a contractor or subcontractor, to the extent those contracts are permitted and applicable, and will ensure compliance with the prevailing wage requirements;

i. The Contractor has the legal authority to enter into and perform this Agreement;

j. This Agreement, when executed and delivered, is a valid and binding obligation of the Contractor enforceable in accordance with its terms.

k. Except for the warranties provided in this Agreement and the Exhibits, the Contractor shall transfer all Services and Deliverables free and clear of any and all restrictions on or conditions of transfer, modification, licensing, sublicensing, direct or indirect distribution, or assignment, and free and clear of any and all liens, claims, mortgages, security interests, liabilities, and encumbrances of any kind.

The warranties set forth in this section are in addition to, and not in lieu of, any other warranties provided by the Contractor.

11. Time of Essence

Time is of the essence in the performance of this Agreement.

12. Waiver of Jury Trial

THE CONTRACTOR AND THE DISTRICT EACH HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED

BY APPLICABLE LAW, ALL RIGHTS TO TRIAL BY JURY IN ANY CLAIM, COUNTERCLAIM, ACTION, OR LEGAL

PROCEEDING ON ANY MATTERS DIRECTLY OR INDIRECTLY ARISING OUT OF OR IN ANY WAY CONNECTED WITH

THIS AGREEMENT.

13. Governing Law and Venue

This Agreement and the rights and obligations of the Parties under the Agreement shall be governed by and interpreted in accordance with the laws of the State of Oregon, without regard to its choice of law rules. Any claim, suit, action or proceeding authorized herein to resolve any dispute or claim arising out of or related to this

Agreement or the interpretation or breach of this Agreement shall be brought and conducted solely and exclusively within the State of Oregon with venue in Wasco County Circuit Court.

Exhibit S, 9

14. No Assignment

Neither Party may assign or transfer any of its duties, rights or obligations, whether in whole or in part under this Agreement without the prior written and signed consent of the other, except that either Party may assign, delegate, or transfer its rights and/or obligations by operation of law to an appropriate parent, subsidiary or affiliate into which the Party is merged, consolidated or reorganized, provided such assignment does not materially impact either Party’s ability to perform under this Agreement.

15. Data Safeguards, Ownership, and Licenses

a. Data Safeguards

The Contractor will employ administrative, physical, and technical safeguards that are reasonably designed to prevent unauthorized collection, access, disclosure, and use of the District data while in its custody. The safeguards that the Contractor employs must (1) meet, at a minimum, industry practice;

and (2) be reasonably designed to ensure that only the Contractor personnel with a need-to-know the

District data have access to it. the Contractor will notify the District of any known breach of any safeguards, and the Contractor and the District will cooperate to investigate and remedy any such breach and any related dispute, inquiry, or claim. If the District data disclosure by the Contractor results in third party claims, the Contractor will defend, indemnify, and hold the District harmless for such claims.

b. No Surreptitious Code

The Contractor hereby warrants and represents that, to the best of its knowledge, its system is free of and does not contain any code or mechanism that collects personal information or asserts control of the system without the District consent, or which may restrict the District’s access to or use of the District data. the Contractor further warrants that it will not knowingly introduce, via any means, spyware, adware, ransomware, rootkit, keylogger, virus, trojan, worm, or other code or mechanism designed to permit unauthorized access to the District data, or which may restrict the District’s access to or use of the District data.

c. Data Breach

If the Contractor becomes aware that the District’s data may have been accessed, disclosed, or acquired without proper authorization and contrary to the terms of this Agreement, then the Contractor shall use reasonable efforts to alert the District of any data breach within forty-eight (48) hours, and shall immediately take such actions as may be necessary to preserve forensic evidence and eliminate the cause of the data breach. The Contractor shall give highest priority to immediately correcting any data breach and shall devote such resources as may be required to accomplish that goal. The Contractor shall provide the District information necessary to fully understand the nature and scope of the data breach.

Exhibit S, 10

d. Ownership of Work Products

All work products of the Contractor arising or resulting from this Agreement are the property of the

District. This Agreement, and all records or other documents pertaining to this Agreement, including the

Contractor’s work products, are public records and may be subject to public disclosure according to state or federal law.

e. No Rights

Except as expressly set forth in this Agreement, nothing in this Agreement may be construed as granting to or conferring upon the Contractor any right, title, or interest in any intellectual property that is now owned or subsequently owned by the District.

16. Confidential Information

The Contractor acknowledges that it and its employees, authorized subcontractors or agents may, while performing their responsibilities under this Agreement, be exposed to or acquire information that is the confidential information of the District or its customers (“Confidential Information”). All information provided by the District and marked Confidential Information or identified as such in a separate writing, shall be deemed to be Confidential Information. The Contractor agrees to hold Confidential Information in strict confidence, using at least the same degree of care that the Contractor uses in maintaining the confidentiality of its own confidential information and not to copy, reproduce, sell, assign license, market, transfer, or otherwise disclose to third parties. Upon termination of this Agreement, the Contractor shall turn over to the District all documents, papers and other matter in its possession that embody Confidential Information.

17. Amendments

This Agreement may be amended by mutual agreement of the Parties. To be effective, all amendments shall be in writing and signed by authorized representatives of each Party.

18. Severability

The provisions of this Agreement are severable. In case any term or provision of this Agreement is held to be invalid, illegal, unenforceable or otherwise contrary to law or equity, in whole or in part, the Parties agree that such provision shall be automatically severed and the validity of any of the other terms of this Agreement shall not in any way be affected.

Exhibit S, 11

19. Entire Agreement

This Agreement consists of this Agreement and its Exhibits, which are attached and incorporated by reference.

This Agreement 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 Agreement.

EXECUTION

The District:

Printed Name Signature Title Date the Contractor: Contractor

Printed Name Signature Title Date