Feasibility Study Attachment A - Sample Contract.pdf

STATE OF OREGON

STANDARD PROFESSIONAL SERVICES CONTRACT

(Architectural, Engineering, Photogrammetric Mapping, Transportation Planning, Land Surveying and Related Services)

THIS PROFESSIONAL SERVICES CONTRACT (the “Contract”) is between the State of Oregon, by and through its (the “Owner”), and:

Company Contract #

Address PCA Project/Phase

City, State Zip

Phone E-mail

(the “Consultant”) (collectively Owner and Consultant are referred to as the "Parties" and individually as a “Party”). This Contract is for all Services related to completion of the project more particularly described as follows (the “Project”):

This Contract shall become effective on the date the Contract is fully executed by the Parties and all required State of Oregon approvals have been obtained (the “Effective Date”). No Services shall be performed prior to the Effective Date. The Contract shall expire, unless otherwise terminated or extended, one (1) year after the end of the construction work warranty that will be provided by the construction contractor for the Project, or two years after Final Completion of Project construction, whichever is later. Generally, the Services to be performed by Consultant on the Project consist of the following (the “Services”):

SITE SELECTION AND FEASIBILITY STUDY SERVICES FOR THE MEDICAL EXAMINER OFFICE NEW

CONSTRUCTION AND SPRINGFIELD AREA COMMAND OFFICE NEW CONSTRUCTION OF THE OREGON

STATE POLICE STRATEGIC MASTER FACILITIES PLAN FIRST PHASE IMPLEMENTATION DESIGN-BUILD

PROJECT

The Services are more specifically described in the EXHIBIT A, Statement of Work. Owner agrees to pay Consultant a sum not to exceed ($_____________) for performance of the Services, which shall include all allowable expenses. Progress payments shall be made in accordance with EXHIBIT B, Consultant Compensation.

This Contract consists of these introductory provisions and the signature page(s), Section 1-Relationship of the Parties, Section 2-Consultant’s Responsibilities; Representations and Warranties, Section 3-Responsibilities of Owner; Special Contract Provisions, Section 4-General Contract Provisions and the following exhibits attached hereto and incorporated herein by this reference:

EXHIBIT A: Statement of Work EXHIBIT E: Critical Date Schedule EXHIBIT B: Consultant Compensation EXHIBIT F: Key Personnel & Rate Schedule EXHIBIT C: Insurance Provisions EXHIBIT G: Assumptions and Exclusions EXHIBIT D: Special Contract Provisions

THIS CONTRACT CONSTITUTES THE ENTIRE AGREEMENT BETWEEN THE PARTIES ON THE SUBJECT

MATTERS ADDRESSED HEREIN. THE TERMS OF THIS CONTRACT CANNOT BE WAIVED, ALTERED,

MODIFIED, SUPPLEMENTED OR AMENDED, IN ANY MANNER WHATSOEVER, EXCEPT BY WRITTEN

INSTRUMENT SIGNED BY THE PARTIES AND CONTAINING ALL REQUIRED STATE OF OREGON

APPROVALS. ANY SUCH WAIVER, ALTERATION, MODIFICATION, SUPPLEMENTATION OR AMENDMENT SHALL BE EFFECTIVE ONLY IN THE SPECIFIC INSTANCE AND FOR THE SPECIFIC PURPOSE GIVEN. THERE ARE NO UNDERSTANDINGS, AGREEMENTS, OR REPRESENTATIONS, ORAL OR WRITTEN, REGARDING THIS CONTRACT EXCEPT AS CONTAINED, INCORPORATED, OR REFERENCED HEREIN. CONSULTANT, BY THE SIGNATURE BELOW OF ITS AUTHORIZED REPRESENTATIVE, HEREBY ACKNOWLEDGES THAT IT HAS READ THIS CONTRACT, UNDERSTANDS THIS CONTRACT, AND AGREES TO BE BOUND BY ALL OF THIS

CONTRACT’S TERMS AND CONDITIONS. THIS CONTRACT, AND ANY AMENDMENTS TO IT, MAY BE

EXECUTED IN COUNTERPARTS (EACH OF WHICH SHALL BE AN ORIGINAL AND ALL OF WHICH SHALL

CONSTITUTE BUT ONE AND THE SAME INSTRUMENT) OR IN MULTIPLE ORIGINALS. AN

ELECTRONICALLY TRANSMITTED FORM OF THIS CONTRACT OR ANY AMENDMENT THERETO, EXECUTED BY ONE OR MORE OF THE PARTIES, WILL CONSTITUTE A COUNTERPART HEREOF, AS LONG AS THE COUNTERPART BEARING THE PARTY’S ORIGINAL SIGNATURE IS PROMPTLY TRANSMITTED TO THE

OTHER PARTY AND RECEIVED BY THAT PARTY FORTHWITH.

Consultant

Name/Title Date

Approved for Legal Sufficiency for the Owner Approved by

Department of Justice

(When Contract payment amount exceeds $150,000)

1. RELATIONSHIP OF THE PARTIES

1.1. Consultant shall provide the Services for the Project

in accordance with the terms and conditions of this Contract. Consultant's performance of Services shall be as a professional consultant to Owner to carry out the Project and to provide the technical documents and supervision to achieve Owner's Project objectives.

1.2. In administering this Contract, Owner may retain

the services of an independent project manager and other consultants as needed to fulfill Owner’s objectives.

1.3. Consultant shall provide a list of all sub-consultants

which Consultant intends to utilize on the Project (the “Sub-Consultants”). This list shall include such information on the qualifications of the Sub-Consultants as may be requested by Owner. Owner reserves the right to review the Sub-Consultants proposed. Consultant shall not retain a Sub-Consultant to which Owner has a reasonable objection.

1.4. Consultant acknowledges that this Contract was

awarded on the basis of the unique background and abilities of the key personnel of Consultant and Sub- Consultants identified by Consultant (collectively, the “Key Personnel” and individually, the “Key Person”).

Therefore, Consultant shall make available Key Personnel as identified in its proposal. Consultant shall provide to Owner a list of the Consultant’s Key Personnel, including any Key Personnel of the Sub-Consultants, and include that information in Exhibit F to this Contract. This list shall include such information on the professional background of each Key Person as may be requested by Owner. If any Key Person becomes unavailable to Consultant, the Parties shall mutually agree upon an appropriate replacement. Without prior notice to, and the written consent of, Owner, Consultant shall not: (i) re-assign or transfer any Key Person to other duties or positions so that the Key Person is unable to fully perform his or her responsibilities under the Contract; (ii) allow any Key Person to delegate to anyone his or her performance of any management authority or other responsibility required under the Contract; or (iii) substitute any Key Person. Any of these actions shall constitute a material breach of the Contract. Consultant shall remove any individual or Sub-Consultant from the Project if so directed by Owner in writing following discussion with Consultant, provided that Consultant shall have a reasonable time period within which to find a suitable replacement.

1.5. The characterization of provisions of the Contract as

material provisions, or the failure to comply with certain provisions as a material breach of the Contract shall in no way be construed to mean that any other provisions of the Contract are not material or that failure to comply with any other provisions is not a material breach of the Contract.

2. CONSULTANT'S RESPONSIBILITIES;

REPRESENTATIONS AND WARRANTIES

2.1. Consultant agrees that:

2.1.1. The phrase “Standard of Care” that is used in this

Contract is defined as follows: the same professional skill, care, diligence and standards as other professionals performing similar services under similar conditions (the “Standard of Care”);

2.1.2. Consultant shall perform all Services in accordance

with the Standard of Care;

2.1.3. Consultant shall prepare, in accordance with the

Standard of Care, all drawings, plans, specifications, deliverables and other documents so that 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 which are due to causes beyond the control of Consultant;

2.1.4. Consultant shall be responsible for correcting any

inconsistencies, errors or omissions in the drawings, plans, specifications, deliverables and other documents prepared by Consultant at no additional cost to Owner;

2.1.5. Owner’s review or acceptance of documents shall

not be deemed as approval of the adequacy of the drawings, plans, specifications, deliverables and other documents. Any review or acceptance by Owner will not relieve Consultant of any responsibility for complying with the Standard of Care;

2.1.6. Except as provided in Supplemental Services

addressed within Exhibits A and B, Consultant shall, at no additional cost to Owner, render assistance to Owner in resolving problems or other issues relating to the Project design or to specified materials;

2.1.7. During the term of the Contract, Consultant shall

obtain, hold, maintain and fully pay for all licenses and permits required by law for Consultant to conduct its business and perform the Services. During the term of the Contract, Owner shall pay for and Consultant shall obtain, hold and maintain all licenses and permits required for the Project, unless otherwise specified in the Contract.

Consultant shall review the Project site and the nature of the Services and 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;

2.1.8. Consultant shall pay all Sub-Consultants and other

subcontractors as required by Consultant’s contracts with those Sub-Consultants and subcontractors. Consultant agrees that Owner has no direct or indirect contractual obligation or other legal duty whatsoever to pay the Sub- Consultants and other subcontractors of Consultant or otherwise ensure that Consultant makes full and timely payment to those Sub-Consultants and subcontractors for services performed on the Project;

2.1.9. Certified Business Firms. Respecting certification

as a disadvantaged business enterprise, minority-owned business, woman-owned business, business that a service-disabled veteran owns or an emerging small business under ORS 200.055 (a “Certified Business Firm”), as and when applicable, the Consultant shall maintain any certifications applicable to the Consultant, and require in its subcontracts that Sub-Consultants and subcontractors maintain any applicable certifications required by Section 2, Chapter 325, Oregon Laws 2015, as amended by Section 26, Chapter 565, Oregon Laws 2015 as a material condition of the Contract. If the Consultant, Sub- Consultant, or subcontractor was awarded the Contract or any underlying subcontract, as applicable, in the course of the Owner’s carrying out an affirmative action goal, policy or program under ORS 279A.100 – 279A.107, and fails to maintain the required certification, Owner may terminate the Contract, require the Consultant to terminate the Sub- Consultant or subcontractor, or exercise any of the remedies reserved for breach of the Contract. Pursuant to ORS 279A.110, Consultant shall not discriminate against a Certified Business Firm, in the awarding of subcontracts under this Contract; and

2.1.10. Certified Business Firm Outreach Plan. If

Consultant submitted a Certified Business Firm Outreach Plan as part of the procurement process for this Contract, that plan is incorporated by reference into this Contract as though fully set forth herein, and Consultant shall conduct the outreach, subcontracting and assistance efforts included in Consultant’s Certified Business Firm Outreach Plan.

2.2. Consultant represents and warrants to Owner that:

2.2.1. Consultant has the power and authority to enter into

and perform this Contract; the persons executing this Contract on behalf of Consultant have the actual authority to bind Consultant to the terms of this Contract;

2.2.2. When executed and delivered, this Contract shall be

a valid and binding obligation of Consultant enforceable in accordance with its terms; the provisions of this Contract do not conflict with or result in a default under any agreement or other instrument binding upon Consultant and do not result in a violation of any law, regulation, court decree or court order or other legal process applicable to Consultant;

2.2.3. Consultant shall, at all times during the term of this Contract, be duly licensed to perform the Services, and if there is no licensing requirement for the profession or

Services, be duly qualified and competent;

2.2.4. Consultant is an experienced firm having the skill, legal capacity, and professional ability necessary to perform all the Services required under this Contract and to design and administer a project having the scope and complexity of the Project;

2.2.5. Consultant has the capabilities and resources

necessary to perform Consultant's obligations under this Contract;

2.2.6. Consultant 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 design and construction of the Project;

2.2.7. All Services shall be performed in accordance with

the Standard of Care;

2.2.8. The Project, when completed and if constructed in

accordance with the intent established by the drawings, plans, specifications, deliverables and other documents prepared by Consultant pursuant to this Contract, shall be structurally sound and a complete and properly functioning facility suitable for the purposes for which it is intended;

2.2.9. The published specifications of the “Automated

Systems” that Consultant 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, heating, ventilation and air conditioning (“HVAC”) systems, elevators, electrical systems, fire or life safety systems, security systems and any other electrical, mechanized or computerized devices serving the Project.

2.2.10. Consultant has no liquidated and delinquent debt

owed to the State of Oregon or any department or agency of the State of Oregon.

2.3. The warranties set forth in this section are in

addition to, and not in lieu of, any other warranties provided in this Contract or at law.

3. RESPONSIBILITIES OF OWNER; SPECIAL

CONTRACT PROVISIONS

Owner's responsibilities under this Contract, and certain additional responsibilities of Consultant, are set forth in Exhibit D-Special Contract Provisions.

4. GENERAL CONTRACT PROVISIONS

4.1. Contract Performance. Consultant shall at all

times perform the Services diligently and without delay and shall punctually fulfill all Contract requirements consistent with the schedule for the performance of Services set forth in Exhibits A and E. Expiration or termination of the Contract shall not extinguish, prejudice, or limit either party's right to enforce this Contract with respect to any default or defect in performance. Time is of the essence in the performance of this Contract.

4.2. Access to Records. For not less than six (6) years

after the Contract’s expiration or termination, Owner, the Secretary of State's Office of the State of Oregon, the federal government, and their duly authorized representatives shall have access to the books, documents, papers, and records of Consultant and the Sub-Consultants which pertain to the Contract for the purpose of making audits, examination, excerpts, and transcripts. If, for any reason, any part of this Contract, any Project-related consultant contract or any Project-related construction contract(s) is involved in litigation, Consultant shall retain all pertinent records for not less than three years or until all litigation is resolved, whichever is longer. Consultant shall provide Owner and the other entities referenced above with full access to these records in preparation for and during litigation.

4.3. Funds Available and Authorized. Owner

reasonably believes as of the Effective Date that sufficient funds are available and authorized for expenditure to finance the cost of this Contract within Owner's appropriation or limitation. Consultant understands and agrees that, to the extent that sufficient funds are not available and authorized for expenditure to finance the cost of this Contract, Owner’s payment of amounts under this Contract attributable to Services performed after the last day of the current biennium or fiscal year, as applicable, is contingent on Owner receiving from the Oregon Legislative Assembly appropriations, limitations or other expenditure authority sufficient to allow Owner, in the exercise of its reasonable administrative discretion, to continue to make payments under this Contract.

4.4. Insurance. Consultant shall maintain in effect for

the duration of this Contract, or any other time periods required herein, the insurance set forth in Exhibit C- Insurance Provisions.

4.5 Indemnity.

4.5.1. CLAIMS FOR OTHER THAN PROFESSIONAL

LIABILITY. CONSULTANT SHALL INDEMNIFY,

DEFEND, SAVE, AND HOLD HARMLESS THE

STATE OF OREGON AND OWNER, AND THEIR

OFFICERS, AGENTS, AND EMPLOYEES, FROM AND

AGAINST ALL CLAIMS, SUITS, ACTIONS, LOSSES,

DAMAGES, LIABILITIES, COSTS AND EXPENSES

OF WHATSOEVER NATURE RESULTING FROM OR

ARISING OUT OF THE ACTS OR OMISSIONS OF

CONSULTANT OR ITS SUB-CONSULTANTS,

SUBCONTRACTORS, AGENTS, OR EMPLOYEES

UNDER THIS CONTRACT;

4.5.2. CLAIMS FOR PROFESSIONAL LIABILITY.

CONSULTANT SHALL INDEMNIFY, DEFEND,

SAVE, AND HOLD HARMLESS THE STATE OF

OREGON AND OWNER, AND THEIR OFFICERS,

AGENTS, AND EMPLOYEES, FROM AND AGAINST

ALL CLAIMS, SUITS, ACTIONS, LOSSES,

DAMAGES, LIABILITIES, COSTS AND EXPENSES

OF WHATSOEVER NATURE ARISING OUT OF THE

PROFESSIONALLY NEGLIGENT ACTS, ERRORS OR

OMISSIONS OF CONSULTANT OR ITS

SUB-CONSULTANTS, SUBCONTRACTORS,

AGENTS, OR EMPLOYEES IN THE PERFORMANCE

OF PROFESSIONAL SERVICES UNDER THIS

CONTRACT;

4.5.3. Owner Defense Requirements. Notwithstanding the

obligations under Sections 4.5.1 and 4.5.2, neither Consultant nor any attorney engaged by Consultant 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. Owner may, at any time and at its election, assume its own defense and settlement of any claims in the event that: it determines that Consultant is prohibited from defending the State of Oregon; Consultant is not adequately defending the State of Oregon's interests; an important governmental principle is at issue; or 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 Consultant if the State of Oregon elects to assume its own defense; and

4.5.4. Owner's Actions. This Section 4.5 does not include

indemnification by Consultant of the State of Oregon or Owner or their officers, agents, and employees, for the acts or omissions of the State of Oregon, Owner or their officers, agents, and employees, whether within the scope of the Contract or otherwise.

4.6. Consultant’s Status.

4.6.1. Consultant shall perform all Services as an

independent contractor. Although Owner reserves the right to set the delivery schedule for the Services to be performed and to evaluate the quality of the completed performance, Owner cannot and will not control the means and manner of Consultant’s performance. Consultant is responsible for determining the appropriate means and manner of performing the Services. Consultant, Consultant’s employees and the Sub-Consultants are not “officers, employees, or agents” of the State of Oregon or Owner, as those terms are used in ORS 30.265;

4.6.2. Consultant shall not have control or charge of, and

shall not be responsible for, the acts or omissions of other consultants or contractors under contract with Owner who are performing services or construction work on the Project. However, this provision does not in any way change Consultant’s professional responsibility to report to Owner any information, including information on the performance of consultants or contractors outside the control or charge of Consultant, concerning activities or conditions that have or could have an adverse effect on Owner or the Project; and

4.6.3. Consultant is not a contributing member of the

Public Employee's Retirement System and will be responsible for any federal, state or other taxes applicable to any compensation or payments paid to Consultant under this Contract. Consultant will not be eligible for any benefits from any payments made under this Contract for federal Social Security, unemployment insurance, or worker’s compensation, except as a self-employed individual. If any payment under this Contract is to be charged against federal funds, Consultant certifies that it is not currently employed by the federal government.

4.7. Successors & Assignments. The provisions of this

Contract shall be binding upon and shall inure to the benefit of the Parties and their respective successors and assigns. After the original Contract is executed, Consultant shall not enter into any Sub-Consultant agreements for any of the Services, assign or transfer any of its interest in this Contract or delegate any of its duties or performance under this Contract, without the prior written consent of Owner.

4.8. Compliance with Applicable Law. Consultant

shall comply with all federal, state and local laws, regulations, executive orders and ordinances applicable to the Services. Owner's performance under this Contract is conditioned upon Consultant's compliance with the provisions of ORS 279C.505, 279C.515, 279C.520, and 279C.530, which are hereby incorporated by reference.

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. All rights and remedies available to the Owner under applicable federal, state and local laws are also incorporated by reference herein and are cumulative with all rights and remedies under the Contract.

4.9. Governing Law; Jurisdiction; Venue. 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. CONSULTANT, BY

EXECUTION OF THIS CONTRACT, HEREBY

CONSENTS TO THE IN PERSONAM JURISDICTION

OF SAID COURTS.

4.10. Tax Compliance Certification; Non-

Discrimination Certification.

4.10.1. Any individual signing this Contract on behalf of

Consultant certifies under penalty of perjury that the individual is authorized to act on behalf of Consultant, has authority and knowledge regarding Consultant’s payment of taxes, and that Consultant is, to the best of the individual’s knowledge, not in violation of any Oregon Tax Laws. For purposes of this certification, “Oregon Tax Laws” means a state tax imposed by ORS 320.005 to

320.150 and 403.200 to 403.250, ORS Chapters 118, 314, 316, 317, 318, 321, and 323 and local taxes administered by the Department of Revenue under ORS 305.620;

4.10.2 Any violation of Section 2.2.10 or the certification

in Section 4.10.1 constitutes a material breach of this Contract. Any such violation entitles Owner to terminate this Contract in whole or in part, to pursue and recover any and all damages that arise from the breach and the termination of this Contract, and to pursue any or all of the remedies available under this Contract, at law, or in equity, including but not limited to, exercise of the right of setoff, or garnishment if applicable, and withholding of amounts otherwise due and owing to the Consultant without penalty; and

4.10.3 Consultant certifies that Consultant has a written

policy and practice that meets the requirements, described in ORS 279A.112, of preventing sexual harassment, sexual assault, and discrimination against employees who are members of a protected class. The Consultant’s policy and practice must include, but not be limited to, giving employees a written notice of the policy that both prohibits and prescribes disciplinary measures for conduct that constitutes sexual harassment, sexual assault, or unlawful discrimination. “Protected class” means a group of persons distinguished by race, color, religion, sex, sexual orientation, national origin, marital status, veteran status, disability or age. Consultant agrees, as a material term of the Contract, to maintain such a policy and practice in full force and effect during the entire Contract term.

4.11. Severability. The Parties agree that if any term or

provision of this 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.

4.12. Force Majeure. Neither party 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 war where such cause was beyond such party's reasonable control. Each party 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.

4.13. Waiver. The failure of Owner to enforce any

provision of this Contract shall not constitute a waiver by Owner of that provision or any other provision of this Contract.

4.14. Third Party Beneficiaries. Nothing contained in

this Contract shall create a contractual relationship with or a cause of action in favor of a third party against Owner or Consultant. Consultant's Services under this Contract shall be performed solely for Owner's benefit and no other entity or person shall have any claim against Consultant because of this Contract for the performance or nonperformance of Services hereunder.

4.15. Ownership of Work Product; Confidentiality.

4.15.1. Definitions. As used in this Contract, the

following terms have the meanings set forth below:

a. “Consultant Intellectual Property” means any intellectual property that is owned by Consultant and developed independently from this Contract;

b. “Third Party Intellectual Property” means any intellectual property that is owned by parties other than Owner or Consultant;

c. “Work Product” means every invention, discovery, work of authorship, trade secret or other tangible or intangible item and all intellectual property rights therein, that Consultant is required to deliver to the Owner pursuant to the Contract, including, but not limited to the Services and deliverables Consultant delivers or is required to deliver to Owner under this Contract and all copies of drawings, plans, specifications, reports and other materials, whether completed, partially completed or in draft form;

4.15.2. Work Product. Except as provided in Sections

4.15.3 and 4.15.4, all Work Product created by Consultant pursuant to this Contract, including derivative works and compilations, and whether or not such Work Product is considered a “work made for hire” or an employment to invent, shall be the exclusive property of Owner. Owner and Consultant agree that such original works of authorship (“Original Work Product”) are “work made for hire” of which Owner is the author within the meaning of the United States Copyright Act. If for any reason Original Work Product created pursuant to this Contract is not “work made for hire,” Consultant hereby irrevocably assigns to Owner any and all of its rights, title, and interest in all Original Work Product created pursuant to this Contract, whether arising from copyright, patent, trademark, trade secret, or any other state or federal intellectual property law or doctrine. Upon Owner’s reasonable request, Consultant shall execute such further documents and instruments necessary to fully vest such rights in the Original Work Product in the Owner.

Consultant forever waives any and all rights relating to Original Work Product created pursuant to this 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;

4.15.3. Consultant Intellectual Property. In the event that

any Work Product is Consultant Intellectual Property or a derivative work based on Consultant Intellectual Property or a compilation that includes Consultant Intellectual Property, or in the event any Consultant Intellectual Property is needed by Owner to reasonably enjoy and use any Work Product, Consultant hereby grants to Owner an irrevocable, non-exclusive, non-transferable, perpetual, royalty-free license to use, reproduce, prepare derivative works based upon, distribute copies of, perform and display Consultant Intellectual Property and the pre-existing elements of the Consultant Intellectual Property employed in the Work Product, including the right of Owner to authorize contractors, consultants and others to do the same on Owner’s behalf. At the request of Consultant, Owner shall take reasonable steps to protect the confidentiality and proprietary interests of Consultant in any Consultant 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);

4.15.4. 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 Owner to reasonably enjoy and use any Work Product, Consultant shall secure on Owner’s behalf and in the name of Owner, 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 Owner to authorize contractors, consultants and others to do the same on Owner’s behalf;

4.15.5. Limited Owner Indemnity. To the extent

permitted by the Oregon Constitution, Article XI, Section 7, and by the Oregon Tort Claims Act, ORS 30.260 through 30.397, Owner shall indemnify and hold Consultant harmless from liability arising out of Owner’s re-use or alteration of the Work Product.;

4.15.6. Consultant Use of Work Product.

Notwithstanding anything to the contrary in this Section 4.15, Consultant may refer to the Work Product in its brochures or other literature that Consultant uses for advertising purposes and, unless specified otherwise in the EXHIBIT A, Statement of Work, Owner hereby grants to Consultant a non-exclusive, non-transferable, royalty-free license to use, reproduce, prepare derivative works based upon, distribute copies of, perform and display Owner-owned Work Product on other, unrelated projects, except for any “Confidential Information” protected from disclosure under the provisions of Section 4.15.7 below, pertaining to Confidentiality, and Section 4.15.8, pertaining to Non-Disclosure;

4.15.7. Confidential Information. Consultant

acknowledges that it or its employees, Sub-Consultants, subcontractors or agents may, in the course of performing their responsibilities under this Contract, be exposed to or acquire information that is the confidential information of Owner or Owner’s clients. Any and all information provided by Owner and marked confidential, or identified as confidential in a separate writing, or that should reasonably be understood to be confidential, that becomes available to Consultant or its employees, Sub-Consultants, subcontractors or agents in the performance of this Contract shall be deemed to be confidential information of Owner (“Confidential Information”). Any reports or other documents or items, including software, that result from Consultant’s use of the Confidential Information and any Work Product that Owner designates as confidential shall also be deemed Confidential Information. Confidential Information shall be deemed not to include information that: (a) is or becomes (other than by disclosure by Consultant) publicly known; (b) is generally made available by Owner to all third parties without restrictions on disclosure; (c) is rightfully in Consultant’s possession without the obligation of nondisclosure prior to the time of its disclosure under this Contract; (d) is obtained from a source other than Owner without the obligation of confidentiality; (e) is disclosed with the written consent of Owner; or (f) is independently developed by employees or agents of Consultant who can be shown to have had no access to the Confidential Information;

4.15.8. Non-Disclosure. Consultant agrees to hold

Confidential Information in strict confidence, using at least the same degree of care that Consultant uses in maintaining the confidentiality of its own confidential information, but not less than reasonable care. Consultant agrees not to 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 Owner under this Contract, and to advise each of its employees, Sub- Consultants, subcontractors and agents of their obligations to keep Confidential Information confidential. Consultant shall use its best efforts to assist Owner in identifying and preventing any unauthorized use or disclosure of any Confidential Information. Without limiting the generality of the foregoing, Consultant shall advise Owner immediately in the event Consultant learns or has reason to believe that any person who has had access to Confidential Information has violated or intends to violate the terms of this Contract and Consultant will at its expense cooperate with Owner in seeking injunctive or other equitable relief in the name of Owner or Consultant against any such person. Consultant agrees that, except as directed by Owner, Consultant will not at any time during or after the term of this Contract disclose, directly or indirectly, any Confidential Information to any person, except in accordance with this Contract, and that upon termination of this Contract or at Owner’s request, Consultant will promptly turn over to Owner all documents, papers, and other matter in Consultant's possession that embody Confidential Information;

4.15.9. Injunctive Relief. Consultant acknowledges that

breach of this Section 4.15, including but not limited to, disclosure of any Confidential Information, will give rise to irreparable injury to Owner that is inadequately compensable in damages. Accordingly, Owner may seek and obtain injunctive relief against the breach or threatened breach of this Section 4.15, in addition to any other legal remedies that may be available. Consultant acknowledges and agrees that the covenants contained herein are necessary for the protection of the legitimate business interests of Owner and are reasonable in scope and content;

4.15.10. Publicity. Consultant agrees that news releases

and other publicity relating to the Work Product will be made only with the prior written consent of Owner; and

4.15.11. Security. Consultant shall comply with all virus-

protection, access control, back-up, password, and other security and other information technology policies of Owner when using, having access to, or creating systems for any of Owner’s computers, data, systems, personnel, or other information resources, or when accessing the Owner’s buildings and real property.

4.16. Termination.

4.16.1. Parties Right to Terminate by Agreement. This

Contract may be terminated, in whole or in part, by written mutual agreement of the Parties.

4.16.2. Owner’s Right to Terminate for Convenience. In

its sole discretion, Owner may terminate this Contract, in whole or in part, when such termination is in the public interest of the Owner by written notice to Consultant specifying the scope of the termination and the termination date of the Contract.

4.16.3. Owner’s Right to Terminate for Cause. Owner

may terminate this Contract immediately, in whole or in part, upon written notice to Consultant, or such later date as Owner may establish in such notice, upon the occurrence of any of the following events:

4.16.3.1. Owner lacks lawful funding, appropriations, limitations or other expenditure authority at levels sufficient to allow Owner, in the exercise of its reasonable discretion, to pay for Consultant’s Services;

4.16.3.2. Federal, state or local laws, regulations or

guidelines are modified or interpreted in such a way that either the Services under this Contract are prohibited or Owner is prohibited from paying for such Services from the planned funding source;

4.16.3.3. Consultant no longer holds all licenses or

certificates that are required to perform the Services;

4.16.3.4. Consultant fails to provide Services within the

times specified or allowed under this Contract; fails to perform or comply with any of the provisions of this Contract; or so fails to perform the Services as to endanger performance of this Contract in accordance with its terms, and after receipt of written notice from Owner, does not correct such failures within the time that Owner specifies (which shall not be less than 10 calendar days, except in the case of emergency); or

4.16.3.5. Consultant has liquidated and delinquent debt

owed to the State of Oregon or any department or agency of the State of Oregon.

4.16.4. Cessation of Services. Upon receiving a notice of

termination, and except as otherwise directed in writing by Owner, Consultant shall immediately cease all activities related to the Services or the Project.

4.16.5. Consultant’s Right to Terminate for Cause.

4.16.5.1. Consultant may terminate this Contract if Owner

fails to make any payment to Consultant required under this Contract within forty-five (45) calendar days after receiving written notice from Consultant of such failure; or

4.16.5.2. Consultant may terminate this Contract, for

reasons other than non-payment, if Owner commits any material breach or default of any covenant, warranty, obligation or agreement under this Contract, fails to perform under the Contract within the time specified, or so fails to perform as to endanger Consultant’s performance under this Contract, and such breach, default or failure is not cured within thirty (30) calendar days after delivery of Consultant’s notice, or such longer period as Consultant may specify in such notice.

4.16.6. Delivery of Work Product/Retained Remedies of

Owner. As directed by Owner, Consultant shall, upon termination, promptly deliver to Owner all documents, information, works in progress, Work Product and other property that are deliverables or would be deliverables if the Contract had been completed. By Consultant's signature on this Contract, Consultant allows Owner to use Work Product and other property for Owner's intended use.

The rights and remedies of Owner provided in this Section

4.16 are not exclusive and are in addition to any other rights and remedies provided by law or under this Contract.

4.16.7. Payment upon Termination.

4.16.7.1. In the event of termination pursuant to Sections

4.16.1, 4.16.2, 4.16.3.1, 4.16.3.2 or 4.16.5, Consultant’s sole remedy shall be a claim for the sum designated for accomplishing the Services multiplied by the percentage of Services completed and accepted by Owner plus Consultant’s reasonable Contract close-out costs, less previous amounts paid and any claim(s) which Owner has against Consultant, except in the event of a termination under Section 4.16.3.1, where no payment will be due and payable for Services performed or costs incurred after the last day of the current biennium, consistent with Section

4.3. Within thirty (30) days after termination, Consultant

shall submit an itemized invoice for all un-reimbursed Services completed before termination and all Contract close-out costs actually incurred by Consultant. Owner shall not be obligated to pay for any such costs invoiced to and received by Owner later than thirty (30) days after termination. If previous amounts paid to Consultant exceed the amount due to Consultant under this subsection, Consultant shall promptly refund any excess amount upon demand; or

4.16.7.2. In the event of termination pursuant to Sections

4.16.3.3, 4.16.3.4 or 4.16.3.5, Owner shall have any remedy available to it in law or equity, including, but not limited to, undertaking collection by administrative offset, or garnishment if applicable, of all monies due for Services to recover liquidated and delinquent debt owed to the State of Oregon or any department or agency of the State of Oregon.. Offsets or garnishment may be initiated after the Contractor has been given notice, if required by law. Such remedies may be pursued separately, collectively or in any order whatsoever. If it is determined for any reason that Consultant was not in default under Sections 4.16.3.3,

4.16.3.4 or 4.16.3.5, the rights and obligations of the Parties shall be the same as if the Contract was terminated pursuant to Section 4.16.2.

4.17. Foreign Contractor. If Consultant is not

domiciled in or registered to do business in the State of Oregon as of the Effective Date, Consultant shall promptly provide to the Oregon Department of Revenue and the Secretary of State’s Corporation Division all information required by those agencies relative to this Contract.

Consultant shall demonstrate its legal capacity to perform the Services under this Contract in the State of Oregon prior to executing this Contract.

4.18. Notice. Except as otherwise expressly provided in

this Contract, any notices to be given hereunder shall be given in writing by personal delivery, e-mail, or first class mail, postage prepaid, to Consultant or Owner at the address or number set forth on Exhibit A, or to such other address or number as either party may provide pursuant to this “Notice” section. Any notice delivered by mail shall be deemed to be given five (5) calendar days after the postmark. To be effective against Owner, any e-mail notice must be confirmed by telephone notice to Owner’s Representative for the Project as indicated in Exhibit A and shall not be deemed to be given until such confirmation is completed. Any notice by personal delivery shall be deemed to be given when actually delivered. Regular, day-to-day communications between the Parties may be transmitted through one of the methods set forth above, in person, by telephone, by e-mail, or by other similar electronic transmission.

4.19. Media Contacts; Private Party Contacts;

Confidentiality. Consultant shall provide no news release, press release, or any other statement to a member of the news media, any third party or the public regarding this Project, without Owner’s prior written authorization.

4.20. Conflict of Interest. Except with Owner’s prior

written consent, Consultant shall not engage in any activity, or accept any employment, interest or contribution that would, or would reasonably appear to, compromise

Consultant’s professional judgment with respect to this

Project, including, without limitation, concurrent employment on any project in direct competition with the

Project.

Exhibits A through G are attached.

EXHIBIT A

STATEMENT OF WORK

Owner and Consultant agree that the following Site Selection and Feasibility Study Services shall be provided by Consultant

PROJECT DESCRIPTION:

Site selection services including a feasibility study with respect to the following two facilities: Springfield Area Forensics Laboratory & Medical Examiner Office New Construction and the Springfield Area Command Office New Construction.

PROJECT PHILOSOPHY: Consultant shall perform professional services to obtain the greatest long-term value for the State of Oregon, and to result in the prudent expenditure of public funds within the constraints of the Project program, context, and budget. In pursuing these goals, Consultant, with Owner's assistance, shall:

a. Perform Services which are appropriate for the context of the Project and the nature of its function, both present and future.

b. Avoid expenditures for aesthetic effect which are disproportionate when compared to the additional benefit to the Project as a whole.

c. Help assure the Project is completed on time and within budget.

d. Strive to reduce the construction cost of the Project while keeping life-cycle costs low.

e. Apprise Owner throughout the Project concerning the economic impact of all design decisions.

f. Document all Project requirements and verify, to Owner’s satisfaction, that requirements are included in the Construction Documents.

g. Reduce the number of toxic chemicals used on the Project in specified products, like those indicated on the

Oregon DEQ Toxics Focus List, in compliance with the Oregon Department of Administrative Services (“DAS”) Green Chemistry Procurement Guidelines” policy number 107-009-0080-PO.

h. Comply with the Oregon Sustainability Act, ORS 184.421 – 184.423.

i. Prepare a comprehensive State Energy Efficiency Design (“SEED”) analysis of the Project, provide all documentation required for a SEED Award to Owner for the Project and provide all other Services for the Project that are required under the SEED Program of the State of Oregon Department of Energy, consistent with the requirements of ORS 276.900 through 276.915 and OAR 330-130-0010 through 330-130-0080, that are applicable to the particular phases of Services. When completed, the Project shall exceed the State Building Code requirements for energy efficiency by 20% or more, and shall be a “model of energy efficiency” as that term is described in the above-referenced administrative rules.

j. As directed by Owner, provide all documentation necessary to incorporate appropriate green energy technology in the Project that meets the requirements of ORS 279C.527 and 279C.528 and the State of Oregon Department of Energy.

k. In compliance with the Office of the Governor State of Oregon Executive Order No. 17-20 and Executive Order No. 20-04, where applicable, address the reduction of greenhouse gas emissions and embodied carbon in the design, construction, specified materials and operation of State of Oregon construction projects, strive to meet the requirement that all new State of Oregon buildings constructed from 2022 onward shall be designed to be carbon neutral ready.

Representatives of the Parties for this Contract and the Project are:

Consultant: Telephone:

E-mail:

Owner: Telephone:

E-mail:

The Services that Consultant shall perform for each phase of the Project are described below: [to be modified/refined for Selected Consultant’s proposal]

Consultant will provide site selection and feasibility study services for (i) Springfield Area Forensics Laboratory & Medical Examiner Office, and the (ii) Springfield Area Command Office. Consultant will complete provide site selection services and a feasibility study of the OSP sites under consideration. The work will be focused specifically in or near the Springfield, Oregon, area and requires a specialized technical team. Consultant’s technical team will meet with the OSP Project Manager at the beginning of the project to discuss and confirm project parameters and project methodology. It is anticipated that there will be at least two (2) additional meetings to refine analysis methodology. All studies and reports will be provided in draft form to Agency, who will review and provide feedback for Consultant to incorporate in the final studies and reports.

The Feasibility Study will be a thorough report involving a review of the site locations under consideration for the facilities to be constructed, and an evaluation of the sites to determine the environmental risks and considerations, the regulatory requirements and constraints regarding general zoning and building codes that apply to the site(s) location(s)as well as any other identified site selection criteria, including traffic flow, wetland impacts, and building components. The feasibility study will include but not be limited to: site appraisals, geotechnical studies, availability of infrastructure and services, uses of adjoining land, easements and restrictive covenants, planning permissions, governmental zoning and related land use laws and regulations, traffic issues, general impact on business in the area, economic and cultural impacts, and environmental impacts and risks.

EXHIBIT B

CONSULTANT COMPENSATION

B.1 BASIS OF COMPENSATION

B.1.01 Owner shall compensate Consultant for the performance of Services set forth in Exhibit A, as follows:

B.1.02 Payments for Services and Reimbursable Expenses shall be made monthly, following Owner’s review and approval of detailed invoices submitted by Consultant and acceptance of the Services or approval of Reimbursable Expenses by Owner. Owner shall make payments only after Owner’s receipt and approval of (i) Consultant’s detailed monthly invoice as described herein, and (ii) all reports, designs, certificates, and documents covered by the invoice.

Payments…