FY27-001 Travel Model Services Attachment C - Sample Contract.pdf

LPA A&E Contract Form C017-B070620-Rev3

Revision History:

5/3/22 (7/6/20 Rev 3)– In Exhibit E, delete fax number and replace with email box for SSUR submittal to OCR, and update OCR mailing address.

1/5/21 (7/6/20 Rev 2) – Add option in Exhibit A, Section 1 for downloading and inserting Acronyms and Definitions list.

8/24/20 (7/6/20 Rev 1)– Minor edits in a few places to remove references to gender (he, she, him, her) per Oregon Court of Appeals “In Re Hollister” decision in early July 2020.

7/6/20 – Add instructions and optional provisions applicable to non-A&E planning services; Change entries of “City” to “Agency” and delete macro that replaced “City” with “County”. “Agency” is now defined as the local agency (City, County, MPO, etc.). Entries of “Agency” then refer to the LPA. Do not replace “Agency” with “County”, “City” or “MPO”, etc. Oregon Department of Transportation is defined as “ODOT” in the contract. “ODOT” needs to be used for any references to Oregon Dept. of Transportation in the contract and

SOW.

1/15/20 – Update various broken hyperlinks.

12/7/18 – Change “Direct Appoint” to “Direct Appoint/Small Purchase” throughout; Update contingency table and instructions in Exhibit A, section F; Update compensation provisions in Exh B sections A, B and D; update SAM.gov hyperlink in Exh E and Exh E.1 5/8/18 - Update hyperlinks throughout to “https” for compatibility with changes to Chrome browser; update DBE Goal instructions on page 2 to align with guidance in LPA A&E Requirements Guide; Update address for OCR office in Exhibits E and E.1; Add Paid Summary Report language to Exhibit B, section D.

11/13/17 – Revise section 13 Indemnity to split “Claims for Professional Liability” and “Claims for Other Than Professional Liability” into two separate paragraphs (per request from ACEC members) to align with indemnity provisions in ODOT A&E contract.

6/27/17– Exhibit F, add FHWA-required provisions related to NEPA issues; update hyperlinks for ODOT web site transition to new server.

6/10/16 - Revised section 5 – Order of Precedence. Exhibits E and E.1 (DBE provisions), section b - deleted language about the DBE program waiver and made a few revisions requested by OCR.

12/31/15 - Revisions per 2015 per SB 491, HB 2716 and HB3303 (pages 10, 12, 23 and 24); Update hyperlinks and revise a few provisions in Exhibit E and E.1 (DBE Provisions)

LPA TEMPLATE for FHWA-FUNDED CONTRACTS

This template is required for FHWA-funded LPA A&E and non-A&E contracts. Regardless of the procurement rules and procedures adopted by an LPA, for federal aid A&E contracts ODOT requires the LPA to meet, at minimum, the solicitation document, contract document and procedural requirements set forth or referenced in the following hyperlinked document: LPA A&E Requirements Guide.

INSTRUCTIONS

• Yellow highlighted areas include instructions that are deleted prior to signing.

• Green highlight indicates instructions specific to non-A&E planning services.

• Blue highlight indicates areas that need revisions or text that may be optional. Optional language may be included if it applies or deleted if it does not. Changes to provisions that are not highlighted in blue, or deletions of provisions not labeled as “optional” or “delete if not applicable” must be approved by ODOT’s Procurement Office.

• Gray highlight indicates fields that need to be filled in.

• Use Track Changes when editing template. Save electronic copy of draft in procurement file that shows

Track Changes of all edits to template.

• Section & Exhibit number formatting. If there are sections or subsections labeled as “optional” that are not applicable to a particular Contract, delete the provisions of the section or subsection but leave the section/subsection heading (and the number/letter formatting assigned to the heading) and enter “RESERVED” following the heading.

• Macros: Turn on Track Changes before running any of the macros so you can quickly review which provisions or instructions have been deleted or added by the macro.

Delete Instructions Click button to run macro after completing edits in

Contract. Deletes all yellow highlighted instructions throughout the Contract. Ensure Track Changes are turned on so the instructions will still be viewable after they are deleted (until deletion is accepted).

Non-AE Planning Services Click button if Contract is for non-A&E planning services.

This macro deletes various contract provisions throughout the Contract that are not applicable to non-A&E planning or other non-A&E services.

• Required Forms for A&E Direct Appointments/Small Purchases prior to executing the contract:

https://www.oregon.gov/ODOT/Business/Procurement/DocsLPA/lpaAErequirements.pdf o A Direct Appointment/Small Purchase Selection Form must be completed by LPA and maintained in the procurement file.

o A Direct Appointment Certification/Small Purchase Form must be completed by Consultant and submitted to LPA prior to executing the contract. LPA maintains this form in the procurement file. (For direct appoints/small purchases only. These certifications are obtained on proposal cover sheet for informal and formal RFPs).

o Certification of Final Indirect Costs form – (Note: The calculation of O/H and Certification of Final Indirect Costs forms are required only if the selected consultant calculates an overhead rate and LPA is not using approved cost data on file at ODOT.) FHWA directive 4470.1A requires firms to submit a signed certification of compliance with 48CFR Part 31 Federal Cost Principles.

If the consultant calculates overhead, they must submit a signed copy of the Certification of Final Indirect Costs form. The certification form is required as an award submittal item in section 4.1.3 of the LPA A&E RFP Template.

• DBE Goals – The following standard goals apply to any contract that includes $1 or more of FHWA funding:

• No goal - if any of the following applies:

o Under $100,000 (including any anticipated amendments) o Single discipline contracts, regardless of dollar amount o Emergency Repair (ER) contracts that are necessary to immediately restore essential travel, minimize the extent of damage, or protect the remaining facilities

• 3% goal - $100,000 or more AND includes 2-4 disciplines

• 8.5% goal - $100,000 or more AND includes 5 or more disciplines

• Goal exception request - For phased projects, contact OCR Personal Services Contracts. To request a different goal, complete and attach the DBE Goal Calculation Worksheet.

For information on requesting DBE goals and forms to use see LPA A&E Requirements Guide (available on line at: https://www.oregon.gov/ODOT/Business/Procurement/Pages/LPA.aspx).

• Notes regarding conflicts with Federal regulations:

o ORS 279A.100 Limited Competition and 279A.120 Oregon Preference are both in conflict with federal requirements [see 49 CFR 18.36(2) and FHWA Guidance] and may not be applied if any federal funding is involved.

o FHWA only recognizes disparity in utilization of DBEs. DBE provisions in Exhibit E or E.1, as applicable, must be included. Provisions regarding utilization of MWESB firms or other small businesses certified under ORS 200.055are not allowed..

o See ORS 279A.020 Organization of Public Contracting Code and ORS 279C.010 Applicability.

• If the predominant purpose of the contract is for A&E and Related Services, citations and references to requirements of ORS 279B and OAR 137-047 must not be included. []

• If the predominant purpose of the contract is for non-A&E planning services, citations and references to requirements of ORS 279C and OAR 137-048 should not be in the contract (except as included in the definitions on page 1 and in various standard Ts&Cs in this template).

o Overtime for professional services. References to ORS 279C.540 and 545 are related to requirements to pay overtime on construction contracts and do not apply to A&E contracting {279C.520 excludes personal services; also see ORS 279C.540(6)}. Consultants typically have more than one client, and normally it is not reasonable to charge overtime hours to a particular client. Firms should generally charge overtime/premium time to overhead on personal services contracts.

https://www.oregon.gov/ODOT/Business/Procurement/DocsLPA/DirApptSel.docx https://www.oregon.gov/ODOT/Business/Procurement/DocsLPA/DAcertLPA.docx https://www.oregon.gov/ODOT/Business/Procurement/DocsPSK/ohCert.docx https://www.fhwa.dot.gov/legsregs/directives/orders/44701a.cfm https://www.ecfr.gov/cgi-bin/text-idx?c=ecfr&tpl=/ecfrbrowse/Title48/48cfr31_main_02.tpl mailto:ocr.psk@odot.state.or.us https://www.oregon.gov/ODOT/Business/Procurement/DocsPSK/DBEwrksht.xlsx https://www.oregon.gov/ODOT/Business/Procurement/Pages/LPA.aspx http://www.fhwa.dot.gov/programadmin/172qa.cfm#r11 http://www.leg.state.or.us/ors/279a.html http://www.leg.state.or.us/ors/279c.html

OPTION 1: ENGINEERING AND RELATED SERVICES CONTRACT

OPTION 2: PERSONAL SERVICES CONTRACT FOR NON-A&E PLANNING SERVICES

Contract Number:

Project Title: Agency Project Number:

Project Location: Associated RFP Number:

Federal Aid Number: No DBE Goal (see Exhibit E.1) [OR]DBE

Goal: % (see Exhibit E) Total Not-to-Exceed (“NTE”) amount for this Contract. This total includes: a) all allowable costs and expenses, profit, and fixed-fee amount, if any; and b) $ for contingency tasks, each of which must be separately authorized by Agency.

This Contract is between , hereafter called “Agency” [Do not change “Agency” to “County”, “City” or “MPO”, etc. For federally funded RFPs and contracts awarded under ODOT’s LPA certification program, just include definitions for “Agency” and “Consultant” as the parties. Use “Oregon Department of Transportation” or “ODOT” for any references to ODOT in the contract.]and [enter legal company name as provided to IRS (and DBA name if applicable)], a (enter state of incorporation/organization) corporation, hereafter called “Consultant.” Agency and Consultant together are also referred to as “Parties” and individually referred to as “Party.” The primary contacts for this Contract are identified in Exhibit J, Contact Information and Key Persons.

This Contract includes Federal Highway Administration (“FHWA”) funding coordinated through the Oregon Department of Transportation (“ODOT”). See Section 18 - Compliance with Applicable Law.

For purposes of this Contract:

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

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

c) “Engineering” Services means architectural, engineering, photogrammetric mapping, transportation planning or land surveying services that must be procured using qualifications based selection procedures [see ORS 279C.100 and ORS 279C.110]; and

d) “Related Services” has the meaning provided in ORS 279C.100.

TERMS AND CONDITIONS

1. Contract Effective Date and Term. This Contract is effective on the date it has been signed by the parties and all required approvals have been obtained. No work or compensation under the Contract is authorized until notice to proceed has been issued in writing (email acceptable) by the Agency. Unless otherwise amended or terminated, this Contract shall expire . [Enter date that is 6 months later than last due date for deliverables to allow time for reviews of deliverables, corrections/revisions of deliverables, invoicing, and resolution of issues if any.]

2. Statement of Work. Consultant shall perform all Services and deliver all deliverables as described in Exhibit A, Statement of Work (the “Services”). The required schedule for performance under the Contract is specified in the Statement of Work.

3. Compensation. The maximum NTE amount, which includes the total of all allowable and reimbursable costs and expenses (and contingency tasks, if any) payable to Consultant under this Contract, is set forth in the table above and detailed further in Exhibit B, Compensation. Agency reserves the right, in its sole discretion, to amend this Contract to increase this amount for additional Services within the scope of the procurement. If this Contract was awarded as a Direct Appointment/Small Purchase, amendments to increase the maximum amount payable are subject to limitations and additional requirements as set forth in applicable Federal, State and local laws. The payment methodology and basis for payment to Consultant is described in Exhibit B, Compensation.

Consultant and any subconsultants are subject to the requirements and limitations of 48 CFR Part 31 – Contract Cost Principles and Procedures.

4. Contract Exhibits. This Contract includes the following exhibits, each of which is incorporated into this Contract as though fully set forth herein:

• Exhibit A – Statement of Work

• Exhibit B – Compensation

• Exhibit C – Insurance

• Exhibit D – Title VI Non-Discrimination Provisions

• Exhibit E – Disadvantaged Business Enterprise (“DBE”) Provisions [Applies if Federally funded and contract receives a DBE goal greater than 0]

• Exhibit E.1 – Disadvantaged Business Enterprise (DBE) Provisions, No-Goal [Applies if Federally funded and contract receives no goal for DBE participation]

• Exhibit F –Special Terms & Conditions

• Exhibit G – RESERVED

• Exhibit H – RESERVED

• Exhibit I – Errors & Omissions (“E&O”) Claims Process [Applies to A&E design and related services.

Label Exhibit I as “RESERVED” for non-A&E land-use planning and other non-A&E services.]

• Exhibit J – Contact Information and Key Persons

5. Order of Precedence. Unless a different order is required by law, this Contract shall be interpreted in the following order of precedence: this Contract (including all amendments, if any) less all Exhibits, attachments and other documents/information incorporated into this Contract, then the Statement of Work and Payment Schedule, then all other Exhibits, then any other attachments or documents/information incorporated into this Contract by reference.

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

a. Consultant, by its signature on the Contract, certifies that it is an independent contractor as defined in ORS 670.600 and as described in IRS Publication 1779, which is available at the following link: https://www.irs.gov/pub/irs-pdf/p1779.pdf. Consultant shall perform all required Services as an independent contractor. Although Agency reserves the right (i) to determine the delivery schedule (as mutually acceptable to Agency and Consultant) for the Services to be performed and (ii) to evaluate the quality of the completed performance, Agency cannot and will not control the means or manner of Consultant's performance. Consultant is responsible for determining the appropriate means and manner of performing the Services. Consultant is not an "officer", "employee", or "agent" of Agency, as those terms are used in ORS 30.265.

b. Consultant, by its signature on the Contract, certifies that: (i) Consultant and, to the best of its information, knowledge and belief, its Associates have made any disclosures required under the COI Disclosure Form (available at:

https://www.oregon.gov/ODOT/Business/Procurement/Pages/LPA.aspx ) or any applicable law;

and (ii) if a conflict of interest is discovered during the term of the Contract, Consultant shall timely submit a COI Disclosure Form to Agency disclosing the conflict(s).

c. Consultant shall be responsible for all Federal or State of Oregon (“State”) taxes applicable to compensation or payments paid to Consultant under the Contract and, unless Consultant is subject to backup withholding, Agency will not withhold from such compensation or payments any amount(s) to cover Consultant's Federal or State tax obligations. Throughout the duration of the Contract, Consultant shall submit an updated W-9 form (https://www.irs.gov/pub/irs-pdf/fw9.pdf) to Agency whenever Consultant’s backup withholding status or any other information changes.

Consultant is not eligible for any social security, unemployment insurance or workers' https://www.irs.gov/pub/irs-pdf/p1779.pdf https://www.oregon.gov/ODOT/Business/Procurement/Pages/LPA.aspx https://www.irs.gov/pub/irs-pdf/fw9.pdf compensation benefits from compensation or payments paid to Consultant under the Contract, except as a self-employed individual.

d. Consultant shall not be responsible for or have control over the means, manner, methods or techniques required of or used by other consultants or contractors under contract with Agency, unless otherwise expressly agreed to in writing by the Parties. The Parties agree, however, that these Section 6.d. provisions do not in any way revise or adjust Consultant’s professional responsibility to report to Agency any information that comes to Consultant’s attention (during performance of this Contract) pertaining to a project, or to performance by other consultants or contractors on a project, that would adversely affect Agency or a particular project.

7. Subcontracts and Assignment; Successors and Assigns

a. Consultant shall obtain Agency's written consent prior to entering into any subcontracts for any of the Services required by the Contract, or in any manner assigning, selling or transferring any of its rights or interest under the Contract or delegate any of its duties or performance under the Contract. In addition to any other provisions Agency may require, Consultant shall include, in any permitted subcontract under the Contract, contractual provisions that shall require any subcontractor (which may also be referred to as “subconsultant”) to comply with Sections 9, 10, 11, 12, 13, 16, 17,18,19, 23, 27 and 29 of these Contract provisions, the limitations of Exhibit B - Compensation, Exhibit D – Title VI Nondiscrimination Provisions, and the requirements and sanctions of ORS Chapter 656, Workers’ Compensation, in the performance of the subcontractor’s Services on the project that is the subject of the Contract, as if the subcontractor were the Consultant. Agency’s consent to any subcontract shall not relieve Consultant of any of its duties or obligations under the Contract, including with respect to any Services, whether performed or to be performed by Consultant or a subcontractor.

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

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

8. Third Party Beneficiaries. The State of Oregon, the Oregon Transportation Commission (OTC) and ODOT, are intended third-party beneficiaries of the Contract with express independent authority to enforce the terms and conditions of the Contract. Otherwise, there are no third-party beneficiaries of the Contract.

9. Representations and Warranties. Consultant represents and warrants to Agency that (i) Consultant has the power and authority to enter into and perform the Contract, (ii) the Contract, when executed and delivered is a valid and binding obligation of Consultant, enforceable in accordance with its terms, (iii) the Services under the Contract will be performed in accordance with the professional standard of care set forth in Section 10 below; (iv) Consultant is duly licensed to perform the Services, and if there is no licensing requirement for the profession or Services, is duly qualified and professionally competent to perform the Services; and (v) Consultant is an experienced firm having the skill, legal capacity, professional ability and resources necessary to perform all the Services required under the Contract. The warranties set forth in this Section are in addition to, and not in lieu of, any other warranties provided.

10. Professional Standard of Care; Responsibility of Consultant; Design Within Funding Limit

a. Professional Standard of Care.

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

b. Responsibility of Consultant.

(i) Consultant shall be responsible for the professional quality, technical accuracy, and coordination of all designs, drawings, specifications, and other Services furnished by Consultant under the Contract. Consultant shall, without additional compensation, correct or revise any errors or deficiencies in its designs, drawings, specifications and other Services.

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

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

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

c. Design Within Funding Limit. [Delete if not applicable. If contract does not include preparation of designs/plans (such as non-A&E planning services, or A&E Related Services for specific disciplines that do not include design preparation), then delete this language at 10.c and replace with “RESERVED”.]

When the Services under the Contract include preparation of design plans for the project:

(i) Consultant shall accomplish the design Services required under the Contract so as to permit construction of the project within Agency’s budget for construction. Agency’s budget for construction of the project is $______________. Consultant shall promptly advise Agency’s Contract Administrator if it finds that the project being designed will exceed or is likely to exceed the funding limitations and it is unable to design a usable project within these limitations. Upon receipt of such information, the Contract Administrator will review Consultant’s revised estimate of construction cost. Agency may, if it determines that the estimated construction contract price set forth in this Section is so low that award of a construction contract not in excess of such estimate is improbable, authorize a change in scope or materials as required to reduce the estimated construction cost to an amount within the estimated construction contract price set forth in this Section, or Agency may adjust such estimated construction contract price.

(ii) Prior to releasing the bid for the construction contract, Agency will prepare an estimate of constructing the design submitted. If Agency’s estimator(s) determines Consultant’s design exceeds Agency’s budget for the construction contract as set forth in Section (i) above {and as may be revised per Section

(i) above}, then Consultant shall perform such redesign and other Services as are necessary to permit contract award within the funding limitation. These additional Services shall be performed at no increase in the price of the Contract. However, Consultant shall not be required to perform such additional Services at no cost to Agency if Consultant’s design exceeds Agency’s budget {as set forth in Section (i) above} as a result of conditions beyond Consultant’s reasonable control.

11. Ownership of Work Product

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

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

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

Agency or Consultant.

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

b. Work Product. All Work Product created by Consultant pursuant to the Contract, including derivative works and compilations, and whether or not such Work Product is considered a “work made for hire,” shall be the exclusive property of Agency. Agency and Consultant agree that Work Product that constitutes original works of authorship (the “Original Work Product”) is “work made for hire” of which Agency is the author within the meaning of the United States Copyright Act. If for any reason Original Work Product created pursuant to the Contract is not “work made for hire,” Consultant hereby irrevocably assigns to Agency any and all of its rights, title, and interest in all Original Work Product created pursuant to the Contract, whether arising from copyright, patent, trademark, trade secret, or any other State or Federal intellectual property law or doctrine. Upon Agency’s reasonable request, Consultant shall execute such further documents and instruments necessary to fully vest such rights in Original Work Product in Agency. Consultant forever waives any and all rights relating to Original Work Product created pursuant to the Contract, including without limitation, any and all rights arising under 17 USC §106A or any other rights of identification of authorship or rights of approval, restriction or limitation on use or subsequent modifications. However, see Sections 11.c and 11.d immediately below, for provisions applicable to Consultant Intellectual Property, Third Party Intellectual Property, Consultant Intellectual Property derivative works and Third Party Intellectual Property derivative works.

c. Consultant and Third Party Intellectual Property. In the event that any Work Product is Consultant Intellectual Property or Third Party Intellectual Property (Consultant Intellectual Property or Third Party Intellectual Property that is applicable to the Services being performed by Consultant under the Contract or included in Work Product deliverable to Agency under the Contract), or in the event any Consultant Intellectual Property or Third Party Intellectual Property is needed by Agency to reasonably enjoy and use any Work Product, Consultant hereby agrees that it will grant to, or obtain for, the Agency an irrevocable, non-exclusive, non-transferable, perpetual, royalty-free license to use, reproduce, prepare derivative works based upon, distribute copies of, perform and display Consultant Intellectual Property and or Third Party Intellectual Property, including the right of Agency to authorize contractors, consultants and others to do the same on Agency’s behalf.

This obligation of the Consultant does not apply to a situation involving a third party who enters a license agreement directly with the Agency. At the request of Consultant, Agency 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 192.410 through 192.505) and the Oregon Uniform Trade Secrets Act (ORS

646.461 to 646.475).

d. Consultant and Third Party Intellectual Property-Derivative Work. In the event that Work Product created by Consultant under the Contract is a derivative work based on Consultant Intellectual Property or Third Party Intellectual Property, or is a compilation that includes Consultant Intellectual Property or Third Party Intellectual Property, Consultant hereby agrees to grant to, or obtain for, Agency an irrevocable, non-exclusive, non-transferable, perpetual, royalty-free license to use, reproduce, prepare derivative works based upon, distribute copies of, perform and display the pre-existing elements of Consultant Intellectual Property or Third Party Intellectual Property employed in the Work Product, including the right of Agency to authorize others to do the same on Agency’s behalf.

e. Consultant Use of Work Product. Notwithstanding anything to the contrary in this Section 11, Consultant may refer to the Work Product in its brochures or other literature that Consultant utilizes for advertising purposes and, unless specified otherwise in Exhibit A – Statement of Work, Agency 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 Agency-owned Work Product on other unrelated projects, except for any “Confidential Information” protected from disclosure under the provisions of Section 12 below, pertaining to Confidentiality and Non-Disclosure.

12. Confidentiality and Non-Disclosure. Consultant and its subcontractors, and their respective employees and agents, shall keep confidential all information, in whatever form, produced, prepared, observed or received to the extent that such information is designated as confidential by the Agency, by law, or by this Contract. In the event Consultant is required to disclose Confidential Information pursuant to a subpoena or other legal process, Consultant shall immediately notify Agency of such subpoena or other legal process, provide Agency with copies of any subpoena, other legal process and any other written materials supporting the subpoena or other legal process, and otherwise cooperate with Agency in the event Agency decides to oppose the disclosure of the Confidential Information. In the event Agency decides not to oppose such subpoena or other legal process or Agency’s decision to oppose the subpoena or legal process has not been successful, Consultant shall be excused from the confidentiality provisions of this Section, to the extent necessary to meet the requirements of the subpoena or other legal process controlling the required disclosure.

13. Indemnity

a. Claims for Other Than Professional Liability. Consultant shall indemnify, defend, save, and hold harmless the Agency, State of Oregon, the OTC and ODOT, and their respective officers, members, agents and employees from any and all claims, suits, actions, losses, liabilities, damages, costs and expenses, including attorney fees, of whatsoever nature, resulting from or arising out of the acts or omissions of Consultant or its subcontractors, or their respective agents or employees, under the Contract.

b. Claims for Professional Liability. Consultant shall indemnify, defend, save, and hold harmless the Agency, State of Oregon, the OTC and ODOT, and their respective officers, members, agents and employees from any and all claims, suits, actions, losses, liabilities, damages, costs and expenses, including attorney fees, of whatsoever nature, resulting from or arising out of the professionally negligent acts, errors or omissions of Consultant or its subcontractors, or their respective agents or employees, in the performance of Consultant’s professional services under the Contract.

c. Indemnity for Infringement Claims. Without limiting the generality of section 13(a) or 13(b), Consultant expressly agrees to indemnify, defend, save and hold harmless the Agency, State of Oregon, the OTC and ODOT, and their respective officers, members and their agencies, subdivisions, officers, directors, agents, and employees from any and all claims, suits, actions, losses, liabilities, damages, costs and expenses, including attorney fees, arising out of or relating to any claims that Consultant’s services, the Work Product or any other tangible or intangible items delivered to the Agency by Consultant that may be the subject of protection under any state or federal intellectual property law or doctrine, or the Agency’s use thereof, infringes any patent, copyright, trade secret, trademark, trade dress, mask work, utility design, or other proprietary right of any third party; provided, Agency shall provide Consultant with prompt written notice of any infringement claim. Provided, however, Consultant shall not be obligated to indemnify, defend, save and hold harmless the Agency (or other entities identified above) under this section 13(c), based solely on the following: Consultant’s compliance with Agency specifications or requirements, including, but not limited to the required use of tangible or intangible items provided by Agency.

d. Defense Qualification. Neither Consultant nor any attorney engaged by Consultant shall defend or purport to defend a claim in the name of the Agency, the State of Oregon, the OTC or ODOT without first receiving from the applicable entity, authority to act as legal counsel, nor shall Consultant settle any claim on behalf of the foregoing entities without the approval of these entities. The Agency, the State of Oregon, the OTC or ODOT may, at their election and expense, assume their own defense and settlement.

e. Agency’s Acts or Omissions. This section 13 does not include indemnification by Consultant of the Agency, the State of Oregon, the OTC and ODOT, and their respective officers, members, agents and employees, for the acts or omissions of these entities and their respective officers, members, agents and employees, whether within the scope of the Contract or otherwise.

14. Insurance. Consultant shall carry insurance as required on Exhibit C.

15. Termination

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

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

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

(i) Agency fails to receive appropriations, limitations or other expenditure authority sufficient to allow Agency, in the exercise of its reasonable administrative discretion, to continue to make payments for Consultant’s Services. Payments under this Contract and continuation of this Contract beyond the current biennium are subject to and contingent upon sufficient funds being appropriated, budgeted, and otherwise made available from current funding sources.

The Agency may terminate this Contract, and Consultant waives any and all claims for damages, effective immediately upon receipt of written notice, or any date specified therein, if for any reason the Agency’s funding from local, state and/or federal sources is not appropriated or is withdrawn, limited or impaired;

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

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

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

d. Consultant's Right to Terminate for Cause.

(i) Consultant may terminate the Contract by giving written notice to Agency if Agency fails to pay Consultant pursuant to the terms of the Contract and if Agency fails to cure within 14 calendar days after receipt of Consultant's written notice, or such longer period of cure as Consultant may specify in such notice.

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

e. Remedies.

(i) In the event of termination pursuant to Sections 15(a), 15(b), 15(c)(i), 15(c)(ii) or 15(d), Consultant's sole remedy (except as otherwise required by applicable State or Federal law) shall be a claim for payment of the satisfactory Services actually rendered up to the time of termination, less previous amounts paid and any claim(s) which State has against Consultant, except in the event of a termination under Section 15(c)(i) where no payment will be due and payable for Services performed or costs incurred after the last day of the current biennium. If previous amounts paid to Consultant exceed the amount due to Consultant under this subsection, Consultant shall pay all excess to Agency upon demand.

(ii) In the event of termination pursuant to Section 15(c)(iii) or 15(c)(iv), Agency shall have any remedy available to it in law or equity. If it is determined for any reason that Consultant was not in default under Section 15(c)(iii) or 15(c)(iv), the rights and obligations of the Parties shall be the same as if the Contract was terminated pursuant to Section 15(b).

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

16. Records Maintenance; Access. Consultant, and its subconsultants, shall maintain all fiscal records relating to the Contract in accordance with generally accepted accounting principles. In addition, Consultant shall maintain all other records pertinent to the Contract and the project and shall do so in such a manner as to clearly document Consultant's performance. The Agency, ODOT, the Oregon Secretary of State's Office (OSS), FHWA and the Comptroller General of the United States (CGUS) and their respective, duly authorized representatives shall have access, and Consultant shall permit the aforementioned entities and individuals access, to such fiscal records and other books, documents, papers, plans and writings of Consultant that are pertinent to the Contract to perform examinations and audits and make excerpts and transcripts. Consultant shall retain and keep accessible all such fiscal records, books, documents, papers, plans, and writings for a minimum of 6 years, or such longer period as may be required by applicable law, following final payment and expiration or termination of the Contract, or until the conclusion of any audit, controversy or litigation arising out of or related to the Contract, whichever date is later. Any cost data submitted by Consultant pursuant to this Contract may be shared with ODOT, FHWA, OSS and CGUS, as necessary, for audit purposes. Agency, ODOT and FHWA shall have the right to review or examine the work in progress for any Services performed under the Contract.

17. Performance Evaluations. Agency will conduct performance evaluation(s) on the Consultant and its subconsultants during the term of the Contract, which will be compiled and maintained by Agency, and become a written record of Consultant's performance. Generally, the performance evaluations will include criteria related to, but not limited to, quality and technical performance, adherence to contract scope and budget, schedule performance, and business relations (including communications and negotiations performance). Agency will provide a copy of the performance evaluation results to Consultant within 14 calendar days following completion. Consultant may respond, in writing, or may request a meeting to address any or all findings contained in the completed performance evaluation within 30 calendar days following receipt. Agency may adjust evaluation score(s) upon Agency’s finding of good cause. Agency may provide copies of any performance evaluation documentation to ODOT, FHWA, and other parties unless lawfully exempt from disclosure.

Agency may use performance evaluation findings and conclusions in any way deemed necessary, including, but not limited to, corrective action, requiring submittal of performance improvement plan by Consultant and withholding of retainage. Agency and ODOT may use Consultant performance under previous contracts as a selection criterion for future contracts.

18. Compliance with Applicable Law. Consultant shall comply with all Federal, State and local statutes, regulations, administrative rules, executive orders, ordinances and other laws applicable to the Services under the Contract, in effect at the time the Contract is executed and as may be amended, revised, enacted or adopted thereafter. Changes in these legal requirements after the execution of the Contract may or may not be the basis for modifications to Consultant’s schedule, scope and fee, depending on a reasonable assessment of the nature of the change, the extent to which the change was anticipated by Consultant or the Parties, and other circumstances then existing. Without limiting the generality of the foregoing, Consultant expressly agrees to comply with: (i) Title VI of the Civil Rights Act of 1964; (ii) Section V of the Rehabilitation Act of 1973; (iii) the Americans with Disabilities Act of 1990 and ORS 659a.142; (iv) the Clean Air Act (42 U.S.C. 7401-7671q); (v) the Federal Water Pollution Control Act as amended (33 U.S.C. 1251-1387); (vi) Executive Order 11738; (vii) Environmental Protection Agency regulations (40 CFR part 15); (viii) and all applicable standards, orders, regulations and administrative rules established pursuant to the foregoing laws. Agency’s performance under the Contract is conditioned upon Consultant’s compliance with, and Consultant shall comply with, the obligations applicable to public contracts and intended for contractors under ORS 279C.520 and 279C.530, which are incorporated by reference herein. All rights and remedies available to Agency under applicable federal, state and local laws are also incorporated by reference herein and are cumulative with all rights and remedies under the Contract. If Consultant discovers a conflict among Federal, State and local statutes, regulations, administrative rules, executive orders, ordinances and other laws applicable to the Services under the Contract, Consultant shall in writing request Agency to resolve the conflict (in collaboration with ODOT and FHWA as applicable). Consultant shall specify if the conflict(s) create a problem for the design or other Services required under the Contract. If Agency concludes there is a conflict among the applicable laws, Federal laws shall govern among the others; State laws shall govern over the others except Federal. The resolution of the conflict of the applicable laws by Agency shall be final and not subject to further review or challenge.

19. Permits and Licenses

a. Permits and licenses to conduct business. Unless otherwise specified in Exhibit A, Statement of Work, Consultant shall obtain, hold, maintain and fully pay for during the term of the Contract all permits and licenses required by law for Consultant to conduct its business and perform the Services under the Contract.

b. Permits and licenses required for the project. Unless otherwise specified in Exhibit A, Statement of Work, Consultant shall obtain, hold and maintain during the term of the Contract all permits and licenses required for the project (for example, permits from regulatory authorities and use permits or licenses from owners of real and personal property), but Agency shall pay for such permits and licenses. Consultant shall review the project site, if applicable, and the nature of the Services that Consultant shall perform under the Contract. Consultant shall advise Agency throughout the course of the project as to the necessity of obtaining all project permits and licenses, the status of the issuance of any such permits and licenses, and any issues or impediments related to the issuance or continuation of any such permits and licenses.

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

21. Force Majeure. Neither Agency nor Consultant shall be held responsible for delay or default in the performance of its obligations due to a cause beyond its reasonable control, including, but not limited to, fire, riot, acts of God, terrorist acts or other acts of political sabotage, or war where such cause was beyond the reasonable control of Agency or Consultant, respectively. Consultant 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.

22. Survival. All rights and obligations shall cease upon termination or expiration of the Contract, except for the rights and obligations set forth in Sections 5, 9, 10, 11, 12, 13, 15(e), 15(f), 16, 22, 23, 26, 27 and 29 and all other rights and obligations which by their context are intended to survive.

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

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

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

[Include the first option below for A&E design and related services. Delete Option 1 for section 26 if the contract is for non-A&E planning or other non-A&E services. Exhibit I – E&O Process is applicable to A&E design and related services. ]

[Option 1- 26. Dispute Resolution and Errors & Omissions Claims Process. In the event of a dispute between the Parties regarding any aspect of the Contract or performance under the Contract, the Parties agree to attempt in good faith to investigate and resolve any such dispute through direct communications and negotiations.

a. Errors & Omissions Related. In the event those good faith efforts do not resolve disputes related to potential Errors and Omissions, the Parties agree to make good faith efforts to resolve the matter pursuant to Exhibit I, Errors & Omissions Claims Process.

b. Other Disputes. In the event good faith efforts do not resolve disputes unrelated to Errors & Omissions, the Parties agree to make a good faith effort to resolve any such dispute through fact finding and non-binding mediation prior to resorting to litigation. The mediator shall be selected by mutual agreement of the Parties. If the Parties fail to agree on a mediator, each Party shall select a mediator and those two persons shall agree on a third-party, who will be the sole mediator. The cost of the mediator shall be split equally between the Parties.

c. Notification to ODOT. Agency shall immediately notify ODOT of any disputes that seek resolution with the Errors & Omissions Claims Process or mediation.

[Option 2 –For non-A&E planning or other non-A&E services delete the above Section 26 and Exhibit I and use the following Section 26. Otherwise delete the following.]

26. Dispute Resolution Process. In the event of a dispute between the Parties regarding any aspect…