ITBAttA_S-6600_Sample Contract_John Day Detection_Final.pdf

OregonBuys Bid# S-62900-00006600 – John Day Exclusive Use Fixed Wing Detection Aircraft Services Att A

DAS Procurement Services, Version 2.2 – March 6, 2019 Page 1 of 30

ATTACHMENT A — SAMPLE CONTRACT

State of Oregon

Contract for Services

For

John Day Exclusive Use Fixed Wing Detection Aircraft Services

This Contract for Services (this “Contract”) is by and between the State of Oregon, acting through its Department of Forestry (“ODF” or “Agency”) and ________, a _______ doing business as ________ (“Contractor”) and is effective as of the Effective Date. Agency and Contractor shall collectively be referred to as the “Parties.”

Contractor’s Contract Administrator for this Contract is:

Name and Title **Address

**City, State ZIP Phone: (xxx) xxx-xxxx

Fax: (xxx) xxx-xxxx anyname@yahoo.com

Agency's Contract Administrator for this Contract is:

Contract Administrator Name, Title Agency-Division Address City, State ZIP Phone: (xxx) xxx-xxxx

Fax: (xxx) xxx-xxxx anyname@oregon.gov

Either party may change its Contract Administrator by providing the other party with notice in compliance with Section 16.6 of this Contract.

The Agency has authority to enter into this Contract for the procurement of Exclusive Use Fixed Wing Detection Aircraft Services, pursuant to its authority under ORS 477.406.

1. Contract Term.

The “Effective Date” of this Contract is the date this Contract has been fully executed by each party and approved as required by applicable law. Unless extended or terminated earlier in accordance with its terms, the initial term of the Contract is one year from the Effective Date (“Initial Term”), with option to extend annually (“Renewal Term(s)”) up to four additional years. The maximum duration of the Contract, including all extensions, shall not exceed five years. The termination of this Contract will not extinguish or prejudice Agency’s right to enforce this Contract with respect to any default by Contractor that has not been cured.

1.1 Renewal Notice. ODF will notify Contractor in writing if the ODF intends to extend the Contract (“renewal notice”) at least 30 days prior to the expiration of the then current term. If Contractor consents to the extension, it shall sign and return the renewal notice to ODF within the time period specified therein. If the Contractor does not consent, the Contract shall expire according to its terms, unless earlier terminated.

2. Contract Documents. This Contract consists of the following documents, which are listed in descending order of precedence:

mailto:anyname@yahoo.com mailto:anyname@oregon.gov

OregonBuys Bid# S-62900-00006600 – John Day Exclusive Use Fixed Wing Detection Aircraft Services Att A

DAS Procurement Services, Version 2.2 – March 6, 2019 Page 2 of 30

2.1 This Contract less all exhibits;

2.2 Exhibit A (Statement of Work);

2.3 Exhibit B (Required Insurance);

2.4 Exhibit E (Pilot Summary);

2.5 Exhibit F (Aircraft Summary);

2.6 Exhibit C (Independent Contractor Certification); and

2.7 Exhibit D (Compensation).

The foregoing documents Exhibits are attached hereto, and the Invitation to Bid (ITB) # S-62900- 00006600 and Contractor’s Bid are made a part of the Contract by this reference.

3. Services.

3.1 Performance of Services. Contractor shall perform the services (the “Services”) and deliver to Agency the deliverables (“Deliverables”) set forth in Exhibit A, the Statement of Work (the “Statement of Work”). The Statement of Work includes the delivery schedule for the Deliverables and Services.

Contractor shall perform the Services in accordance with the terms and conditions of this Contract.

4. Compensation.

4.1 Compensation for Daily Availability, Extended Standby, and flight time will be paid at the rates as provided in Exhibit D and will not be paid for Services performed before the Effective Date or after the expiration or termination of this Contract. Rates apply to the Initial Term and any Extension Term(s) past the 60-day availability. If the maximum compensation is increased by amendment of this Contract, the amendment must be fully effective before Contractor performs Services subject to the amendment.

Contractor is guaranteed a minimum of 60 days at the Daily Availability Rate. Contractor shall be paid for actual flight hours accrued. Extended Standby Rate only applies when beyond the 9-hour availability per required person, per hour, and shall not exceed five hours per day. Compensation for flight hours to mobilize the aircraft at the beginning of the 60-day Contract period and to demobilize back to the Home Base at the end of the Contract period will be paid, unless reassigned to another incident; these flight times will count toward guaranteed hours.

Flight time will be measured in hours and tenths and will begin when the aircraft lifts off on an ordered flight and ends when the aircraft has landed. All flights shall be recorded on an ODF Fixed Wing/Aircraft Shift Ticket; start and stop times must be recorded and converted to hours and tenths.

It is the Contractor’s responsibility to provide meals and lodging for all its personnel to provide Services at all locations. ODF will reimburse Contractor per required person, per night to Remain Overnight (RON) away from the designated Primary Base and only when at Secondary Base locations, at the Federal Domestic U.S. General Services Administration (GSA) Per Diem Rate(s) (“CONUS Rates”) only for meals and lodging that are essential for Contractor’s discharge of assignments by ODF. ODF will not reimburse for Per Diem if Contractor’s personnel are returning to either their Home Base or Primary Base each day. When RON applies, it must be documented on the ODF Fixed Wing/Aircraft Shift Ticket. GSA Domestic Per Diem Rates may be found via the internet at:

https://www.gsa.gov/travel/plan-book/per-diem-rates.

https://www.gsa.gov/travel/plan-book/per-diem-rates

OregonBuys Bid# S-62900-00006600 – John Day Exclusive Use Fixed Wing Detection Aircraft Services Att A

DAS Procurement Services, Version 2.2 – March 6, 2019 Page 3 of 30

4.2 Payments. Payments, including interim payments, to Contractor are subject to ORS 293.462 will be made only for completed and accepted Deliverables and Services, and will be made in accordance with the requirements set forth in the Statement of Work Exhibit A. Contractor must register in OregonBuys https://OregonBuys.gov in order to receive payment from Agency.

4.3 Price Adjustments. Rates in Exhibit D are firm through the Initial Term of the Contract and may only be adjusted at the time of Contract renewal by Amendment. For every year after the Initial Term, if mutually agreed to renew for one or more option years (Renewal Term(s)), a 2% increase will be applied to the Daily Availability and Flight Rate that is listed on Exhibit D. Price adjustments will be rounded to the nearest whole dollar. Adjusted rates shall become effective on the first day of the Contract Renewal Term and are firm for the Renewal Term and Extension Term, if any.

4.3.1 Equitable Adjustments. The Agency may, in its sole discretion, make an equitable adjustment in the Contract terms or pricing, if pricing or availability of supply is affected by extreme and unforeseen volatility in the marketplace. An adjustment under this clause may be made only if the Agency finds that the following criteria are met: (1) the volatility is due to causes wholly beyond the Contractor’s control; (2) the volatility affects the marketplace or industry, not just the particular Contract source of supply; (3) the effect on pricing or availability of supply is substantial; and (4) the volatility so affects the Contractor that continued performance of the Contract would result in a substantial loss.

4.3.2 The Contractor may request an equitable adjustment to the Contract pricing by providing evidence to the Agency that satisfies the criteria above within 10 business days of receiving a notice of Renewal/Amendment. The Agency will review the evidence provided by the Contractor, and at its sole discretion determine if an equitable adjustment will be made and the dollar amount of the adjustment, if approved. Agency has the right to negotiate pricing with the Contractor. If an equitable adjustment is approved by the parties, the Agency will provide an updated Renewal/Amendment that reflects the adjustment.

4.4 Expenses. Agency will not pay or reimburse any expenses incurred by Contractor during the completion of the Services except as authorized in the Statement of Work or elsewhere in this Contract. Any such authorized travel expenses must comply with the Oregon Travel Policy available on the Internet at: http://www.oregon.gov/das/cfo/sars/policies/oam/40.10.00.pdf

4.5 Funds Available and Authorized. Contractor will not be compensated for Services performed under this Contract by any agency or department of the State of Oregon other than Agency. Agency believes it has sufficient funds currently available and authorized for expenditure to make payments under this Contract within Agency’s biennial appropriation or limitation. Contractor understands and agrees that Agency’s payments under this Contract are contingent on Agency receiving appropriations, limitations, or other expenditure authority sufficient to allow Agency, in the exercise of its reasonable administrative discretion, to continue to make payments under this Contract.

4.6 Invoices. Contractor shall submit invoices to Agency as set forth in the Statement of Work.

5. Contractor’s Personnel.

5.1 Key Persons. Contractor acknowledges and agrees that Agency selected Contractor, and is entering into this Contract because of the special qualifications of Contractor's key persons identified in the Contractor’s Bid (each a “Key Person” and, together, “Key Persons”). Neither Contractor nor a Key Person may delegate performance of the powers and responsibilities that a Key Person is required to provide under this Contract to another Contractor employee, subcontractor or agent without first obtaining the written consent of Agency. Further, Contractor may not re-assign or transfer a Key Person to other duties or positions such that the Key Person is no longer available to provide the https://oregonbuys.gov/ http://www.oregon.gov/das/cfo/sars/policies/oam/40.10.00.pdf

OregonBuys Bid# S-62900-00006600 – John Day Exclusive Use Fixed Wing Detection Aircraft Services Att A

DAS Procurement Services, Version 2.2 – March 6, 2019 Page 4 of 30

Agency with the required expertise, experience, judgment, and personal attention, without first obtaining Agency's written consent to such re-assignment or transfer, which Agency will not unreasonably withhold or delay. Notwithstanding the foregoing, Contractor may replace a Key Person in the event the Key Person is no longer available due to circumstances beyond Contractor’s reasonable control, such as death, illness, or termination of employment with Contractor. In the event Contractor requests that Agency approve a re-assignment or transfer of a Key Person, or if Contractor must replace a Key Person, Agency may interview, review the qualifications of, and approve or reject the proposed replacement for the Key Person. Any such replacement must have substantially equivalent or better qualifications than the Key Person being replaced. Any replacement personnel approved by Agency in writing (email acceptable) will thereafter be deemed a Key Person for purposes of this Contract, and the Statement of Work will be deemed amended to include such Key Person.

5.2 Payment for Replacement Key Personnel. If Agency is paying Contractor on an hourly or other periodic basis, then Contractor will not charge Agency, and Agency will not pay, for a replacement Key Person while such replacement acquires the project knowledge and skills necessary to perform the Services. Agency will determine the time period for which the replacement is not qualified to receive payment.

5.3 State Premises. Contractor and Contractor staff shall comply with all policies, rules, procedures, and regulations established by Agency and the State for access to and activities in and around premises controlled by Agency or any other agency of the State.

6. Independent Contractor; Responsibility For Taxes And Withholding.

6.1 Independent Contractor. Contractor shall perform all Services as an independent contractor.

Agency reserves the right (i) to determine and modify the delivery schedule for the Services and (ii) to evaluate the quality of the Services; however, Agency may not and will not control the means or manner of Contractor's performance. Contractor is responsible for determining the appropriate means and manner of performing the Services.

6.2 No Conflicts. Contractor, by signature to this Contract, represents and warrants that Contractor’s performance of the Services under this Contract creates no potential or actual conflict of interest as defined by ORS 244; and no statutes, rules or regulations of any State of Oregon or federal agency for which Contractor currently performs work would prohibit Contractor from performing the Services under this Contract.

6.3 Affiliation. Contractor understands and agrees that it is not an "officer," "employee," or "agent" of the State of Oregon, as those terms are used in ORS 30.265 or otherwise.

6.4 Taxes and Benefits. Contractor is responsible for all federal or state taxes applicable to compensation or payments paid to Contractor under this Contract and, unless required by applicable law, Agency will not withhold from such compensation or payments any amount to cover Contractor's federal or state tax obligations. Contractor is not eligible for any social security, unemployment insurance, or workers' compensation benefits from compensation or payments paid to Contractor under this Contract, except as a self-employed individual.

7. Subcontracts, Successors, And Assignments.

7.1 Subcontracts. Contractor shall not enter into any subcontracts for any of the Services required by this Contract without Agency's prior written consent. In addition to any other provisions Agency may require, Contractor shall include in any permitted subcontract under this Contract provisions to ensure that Agency will receive the benefit of subcontractor’s performance as if the subcontractor

OregonBuys Bid# S-62900-00006600 – John Day Exclusive Use Fixed Wing Detection Aircraft Services Att A

DAS Procurement Services, Version 2.2 – March 6, 2019 Page 5 of 30 were Contractor. Agency’s consent to any subcontract does not relieve Contractor of any of its duties or obligations under this Contract.

7.2 Successors and Assigns. The provisions of this Contract are binding upon and inure to the benefit of the Parties to this Contract, their respective successors, and permitted assigns, if any.

7.3 No Assignment. Contractor shall not assign or transfer any of its rights or delegate its obligations under this Contract without Agency’s prior written consent.

8. Representations and Warranties.

8.1 Contractor’s General Representations and Warranties. Contractor represents and warrants to Agency that:

8.1.1 Contractor has the power and authority to enter into and perform this Contract;

8.1.2 This Contract, when executed and delivered, is a valid and binding obligation of Contractor enforceable in accordance with its terms;

8.1.3 Contractor shall, at all times during the term of this Contract, be qualified, professionally competent, and duly licensed to perform the Services;

8.1.4 Contractor prepared its offer related to this Contract, if any, independently from all other offerors, and without collusion, fraud, or other dishonesty; and

8.1.5 Contractor (to the best of Contractor’s knowledge, after due inquiry), for a period of no fewer than six years preceding the Effective Date, faithfully has complied with:

8.1.5.1 All tax laws of this state, including but not limited to ORS 305.620 and ORS chapters 316, 317, and 318;

8.1.5.2 Any tax provisions imposed by a political subdivision of this state that applied to Contractor, to Contractor’s property, operations, receipts, or income, or to Contractor’s performance of or compensation for any work performed by Contractor;

8.1.5.3 Any tax provisions imposed by a political subdivision of this State that applied to Contractor, or to goods, services, or property, whether tangible or intangible, provided by Contractor;

8.1.5.4 Any rules, regulations, charter provisions, or ordinances that implemented or enforced any of the foregoing tax laws or provisions; and

8.1.6 Contractor has no undisclosed liquidated and delinquent debt owed to the State or any department or agency of the State.

8.2 Contractor’s Performance Warranties.

8.2.1 Contractor has the skill and knowledge possessed by well-informed members of its industry, trade, or profession and Contractor shall apply that skill and knowledge with care and diligence to perform the Services in a professional manner and in accordance with the highest standards prevalent in Contractor’s industry, trade, or profession;

OregonBuys Bid# S-62900-00006600 – John Day Exclusive Use Fixed Wing Detection Aircraft Services Att A

DAS Procurement Services, Version 2.2 – March 6, 2019 Page 6 of 30

8.2.2 The Services and each Deliverable delivered by Contractor pursuant to the Services will materially comply with any service descriptions, specifications, standards, or requirements set forth in this Contract;

8.2.3 Except as otherwise provided in this Contract, Contractor shall transfer all Deliverables to Agency free and clear of any and all restrictions on or conditions of transfer, modification, licensing, sublicensing, direct or indirect distribution, or assignment, and free and clear of any and all liens, claims, mortgages, security interests, liabilities, and encumbrances of any kind; and

8.2.4 Except as otherwise set forth in this Contract, any subcontractors performing work for Contractor under this Contract have assigned all of their rights in the Deliverables to Contractor or Agency and no third party has any right, title, or interest in any Deliverables supplied to Agency under this Contract.

8.3 Warranties cumulative. The warranties set forth in Section 8 are in addition to, and not in lieu of, any other warranties set forth elsewhere in this Contract.

9. Confidential Information.

9.1 Confidential Information. Contractor acknowledges that it and its employees, officers, directors, agents, or subcontractors (collectively, “Contractor Staff”) may, in the course of performing the Services under this Contract, be exposed to or acquire information that is confidential to Agency or Agency’s clients. Any and all information of any form (including but not limited to records, files, papers, materials, documents, and communications in written, verbal, oral, and electronic form) that Contractor or any Contractor Staff may come into contact with or that is obtained by Contractor or Contractor Staff in the performance of this Contract shall be considered for the purposes of this Contract the confidential information of Agency (“Confidential Information”). Contractor shall, and shall cause Contractor Staff to treat any reports or other documents or items (including software) that result from the use of the Confidential Information in the same manner as the Confidential Information. Confidential Information does not include information that (i) is or becomes (other than by disclosure by Contractor or Contractor Staff acquiring such information) publicly known or is contained in a publicly available document except to the extent applicable law still restricts disclosure; (ii) is furnished by Agency to others without restrictions similar to those imposed by this Contract; (iii) is rightfully in Contractor’s possession without the obligation of nondisclosure prior to the time of its disclosure under this Contract; (iv) is obtained from a source other than Agency without the obligation of confidentiality, (v) is disclosed with the written consent of Agency, or; (vi) is independently developed by Contractor or Contractor Staff who can be shown to have had no access to the Confidential Information.

9.2 Non-Disclosure. Contractor shall hold, and shall cause Contractor Staff to hold, all Confidential Information in confidence, using the highest standard of care applicable, and shall not copy, reproduce, sell, assign, license, market, transfer, distribute, or otherwise dispose of, give, make available, or disclose, in whole or in part, directly or indirectly, Confidential Information to third parties (other than its authorized subcontractors), or use Confidential Information for any purposes whatsoever other than the provision of Services to Agency hereunder, and shall advise Contractor Staff of their obligations to keep Confidential Information confidential. Contractor shall assist Agency in identifying and preventing any unauthorized use or disclosure of any Confidential Information.

Without limiting the generality of the foregoing, Contractor shall advise Agency immediately in the event Contractor 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 Contractor will at its expense cooperate with Agency in seeking injunctive or other equitable relief in the name of Agency or Contractor against any such person. Contractor shall not at any time during or after the term of

OregonBuys Bid# S-62900-00006600 – John Day Exclusive Use Fixed Wing Detection Aircraft Services Att A

DAS Procurement Services, Version 2.2 – March 6, 2019 Page 7 of 30 this Contract, except as directed by Agency, disclose, directly or indirectly, any Confidential Information to any person, except in accordance with this Contract. Upon expiration or termination of this Contract or at Agency’s request, Contractor shall deliver to Agency all documents, papers, and other matter in Contractor's possession that embody Confidential Information. Notwithstanding the foregoing and unless otherwise specified in this Contract, Contractor may keep one copy of such Confidential Information necessary for quality assurance, audits, and evidence of performance of the Services.

9.3 Confidentiality Policies. Contractor shall, upon Agency’s request, provide its policies and procedures for safeguarding Confidential Information to Agency for Agency’s review and consent. Such policies must address information conveyed in oral, written, and electronic format and include procedures for how Contractor will respond when a violation or possible violation occurs.

9.4 Injunctive Relief. Contractor acknowledges that breach of this Section 9, including disclosure of any Confidential Information, will cause irreparable injury to Agency that is inadequately compensable in damages. Accordingly, Agency may seek and obtain injunctive relief against the breach or threatened breach of the foregoing undertakings, in addition to any other legal remedies that may be available.

Contractor acknowledges and agrees that the covenants contained herein are necessary for the protection of the legitimate business interests of Agency and are reasonable in scope and content.

9.5 Publicity. Contractor agrees that it will not disclose the form, content, or existence of this Contract or any Deliverables in any advertising, press releases, or other materials distributed to prospective customers, or otherwise attempt to obtain publicity from its association with Agency or the State of Oregon, whether or not such disclosure, publicity, or association implies an endorsement by Agency or the State of Oregon of Contractor’s services, without the prior written consent of Agency.

10. Indemnity by Contractor.

10.1 Claims. Contractor shall defend, save, hold harmless, and indemnify the State of Oregon and Agency and their officers, employees, and agents from and against all third party claims, suits, actions, losses, damages, liabilities, costs (including attorneys’ fees), and expenses (collectively, "Claims") of any nature whatsoever resulting from, arising out of, or relating to the activities of Contractor or its officers, employees, subcontractors, or agents under this Contract, including but not limited to, unauthorized disclosure of Confidential Information, professional malfeasance, infringement of intellectual property rights, intentional, willful, or wanton wrongful acts, and acts outside the scope of Services set forth in this Contract.

10.2 Legal Counsel. If Contractor is required to defend the State of Oregon or Agency or their officers, employees or agents under Section 10.1, then Contractor shall select legal counsel reasonably acceptable to the Oregon Attorney General to act in the name of, or represent the interests of, the State of Oregon, Agency or their officers, employees, and agents. Such legal counsel must accept appointment as a special assistant attorney general under ORS chapter 180 before such action or representation. Further, the State of Oregon, acting by and through its Department of Justice, may assume its own defense, including that of its officers, employees, and agents, at any time when in the State of Oregon's sole discretion it determines that (i) proposed counsel is prohibited from the particular representation contemplated; (ii) counsel is not adequately defending the interests of the State of Oregon or its officers, employees, and agents; (iii) important governmental interests are at stake; or (iv) the best interests of the State of Oregon are served thereby. Contractor's obligation to pay for all costs and expenses includes those incurred by the State of Oregon in assuming its own defense or that of its officers, employees, and agents under (i) and (ii) above.

OregonBuys Bid# S-62900-00006600 – John Day Exclusive Use Fixed Wing Detection Aircraft Services Att A

DAS Procurement Services, Version 2.2 – March 6, 2019 Page 8 of 30

10.3 Damages to State Property and Employees. Contractor is liable for all Claims for personal injury, including death, damage to real property, and damage to tangible and intangible personal property of the State of Oregon or any of its employees, subcontractors, or agents resulting from, arising out of, or relating to the intentional, reckless, or negligent acts or omissions of Contractor or its officers, employees, subcontractors, or agents under this Contract.

10.4 CONTRACTOR IS NOT AUTHORIZED TO SETTLE OR COMPROMISE ANY CLAIM REFERENCED IN

THIS SECTION WITHOUT THE EXPRESS WRITTEN CONSENT OF AGENCY.

11. Limitation of Liabilities.

11.1 EXCEPT FOR LIABILITY TO THIRD PERSONS ARISING OUT OF OR RELATED TO (i) SECTION 9, OR (ii) SECTION 10, NEITHER PARTY WILL BE LIABLE TO THE OTHER FOR ANY LOST PROFITS, LOST SAVINGS, OR PUNITIVE, INDIRECT, EXEMPLARY, CONSEQUENTIAL, OR INCIDENTAL

DAMAGES.

12. Insurance. Contractor shall maintain insurance as set forth in Exhibit B.

13. Default; Remedies; Termination.

13.1. Default by Contractor. Contractor will be in default under this Contract if:

13.1.1. Contractor institutes or has instituted against it, insolvency, receivership, or bankruptcy proceedings, makes an assignment for the benefit of creditors, or ceases doing business on a regular basis; or

13.1.2. Contractor no longer holds a license or certificate that is required for Contractor to perform its obligations under the Contract and Contractor has not obtained such license or certificate within 14 calendar days after Agency’s notice or such longer period as Agency may specify in such notice; or

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

13.1.4. Contractor has liquidated and delinquent debt owed to the State of Oregon or any department or agency of the State.

13.2. Agency’s Remedies for Contractor’s Default. In the event Contractor is in default under Section 13.1, Agency may, at its option, pursue any or all of the remedies available to it under this Contract and at law or in equity, including, but not limited to:

13.2.1. Termination of this Contract under Section 13.6.2; or

13.2.2. Withholding all monies due for Services and Deliverables that Contractor has failed to deliver within any scheduled completion dates or has performed inadequately or defectively; or

13.2.3. Initiation of an action or proceeding for damages, specific performance, or declaratory or injunctive relief; or

OregonBuys Bid# S-62900-00006600 – John Day Exclusive Use Fixed Wing Detection Aircraft Services Att A

DAS Procurement Services, Version 2.2 – March 6, 2019 Page 9 of 30

13.2.4. Exercise of its right of setoff, and withholding of amounts otherwise due and owing to Contractor, without penalty; or

13.2.5. Undertaking collection by administrative offset, or garnishment if applicable, of all monies due for Services and Deliverables to recover liquidated and delinquent debt owed to the State of Oregon or any department or agency of the State. Offsets or garnishment may be initiated after the Contractor has been given notice if required by law.

13.3. Remedies Cumulative. The remedies set forth in Section 13.2 are cumulative to the extent the remedies are not inconsistent, and Agency may pursue any remedy or remedies singly, collectively, successively, or in any order whatsoever. If a court determines that Contractor was not in default under Sections 13.1, then Contractor will be entitled to the same remedies as if this Contract was terminated pursuant to Section 13.6.1.

13.4. Default by Agency. Agency will be in default under this Contract if:

13.4.1. Agency fails to pay Contractor any amount pursuant to the terms of this Contract, and Agency fails to cure such failure within 30 calendar days after Contractor’s notice or such longer period as Contractor may specify in such notice; or

13.4.2. Agency commits any material breach or default of any covenant, warranty, or obligation under this Contract, and such breach or default is not cured within 30 calendar days after Contractor’s notice or such longer period as Contractor may specify in such notice.

13.5. Contractor’s Remedies. In the event Agency terminates this Contract under Section 13.6.1, or is in default under Section 13.4 and whether or not Contractor elects to exercise its right to terminate the Contract under Section 13.6.3, Contractor’s sole monetary remedy will be (i) with respect to Services compensable at a stated rate, a claim for unpaid invoices, time worked within any limits set forth in this Contract but not yet invoiced, and authorized expenses incurred and interest, subject to ORS 293.462, and (ii) with respect to Deliverables-based Services, a claim for the sum designated for completing the Deliverables multiplied by the percentage of Services completed and accepted by Agency, less previous amounts paid and any claim(s) that Agency has against Contractor. In no event will Agency be liable to Contractor for any expenses related to termination of this Contract or for anticipated profits. If previous amounts paid to Contractor exceed the amount due to Contractor under this Section 13.5, Contractor shall pay immediately any excess to Agency upon written demand.

13.6. Termination.

13.6.1. Agency’s Right to Terminate at its Discretion. Agency may terminate this Contract:

13.6.1.1. Upon 30 calendar days’ prior written notice by Agency to Contractor;

13.6.1.2. Immediately upon written notice by Agency to Contractor if Agency fails to receive funding, appropriations, limitations, allotments, or other expenditure authority at levels sufficient to pay for the Services or Work Products; or

13.6.1.3. Immediately upon written notice by Agency to Contractor if federal or state laws, regulations, or guidelines are modified or interpreted in such a way that the Agency’s purchase of the Services or Work Products under this Contract is prohibited or Agency is prohibited from paying for such Services or Work Products from the planned funding source.

OregonBuys Bid# S-62900-00006600 – John Day Exclusive Use Fixed Wing Detection Aircraft Services Att A

DAS Procurement Services, Version 2.2 – March 6, 2019 Page 10 of 30

13.6.2. Agency’s Right to Terminate for Cause. In addition to any other rights and remedies Agency may have under this Contract, Agency may terminate this Contract immediately upon written notice by Agency to Contractor, or at such later date as Agency may establish in such notice, if Contractor is in default under Section 13.1.

13.6.3. Contractor’s Right to Terminate for Cause. Contractor may terminate this Contract immediately upon written notice to Agency, or at such later date as Contractor may establish in such notice, if Agency is in default under Section 13.4.

13.7. Return of Property. Upon termination of this Contract for any reason whatsoever, Contractor shall immediately deliver to Agency all of Agency’s property (including without limitation any Services or Work Products for which Agency has made payment in whole or in part) that is in the possession or under the control of Contractor in whatever stage of development and form of recordation such Agency property is expressed or embodied at that time.

13.8. Effect of Termination. Upon receiving a notice of termination of this Contract, Contractor shall immediately cease all activities under this Contract, unless Agency expressly directs otherwise in such notice of termination. Upon Agency's request, Contractor shall surrender to anyone Agency designates, all documents, research, or objects or other tangible things needed to complete the Services and the Deliverables.

14. Compliance with Law.

14.1. Compliance with Law Generally. Contractor shall comply, and cause all subcontractors to comply with all federal, state, and local laws, regulations, executive orders, and ordinances applicable to this Contract and the performance of the Services. Without limiting the generality of the foregoing, Contractor expressly agrees to comply with the following laws, regulations and executive orders to the extent they are applicable to this Contract: (i) Titles VI and VII of the Civil Rights Act of 1964, as amended; (ii) Title V and Sections 503 and 504 of the Rehabilitation Act of 1973, as amended; (iii) the Americans with Disabilities Act of 1990 and ORS 659A.142, as amended; (iv) Executive Order 11246, as amended; (v) the Health Insurance Portability and Accountability Act of 1996, as amended by the Health Information Technology for Economic and Clinical Health (HITECH) Act portion of the American Recovery and Reinvestment Act of 2009 (ARRA), including the Privacy and Security Rules found at 45 CFR Parts 160 and 164, as the law and its implementing regulations may be updated from time to time; (vi) the Age Discrimination in Employment Act of 1967, as amended, and the Age Discrimination Act of 1975, as amended; (vii) the Vietnam Era Veterans’ Readjustment Assistance Act of 1974, as amended; (viii) Section 188 of the Workforce Investment Act (WIA) of 1998, as amended;

(ix) ORS Chapter 659, as amended; (x) all regulations and administrative rules established pursuant to the foregoing laws; and (xi) all other applicable requirements of federal and state civil rights and rehabilitation statutes, rules, and regulations. These laws, regulations, and executive orders are incorporated by reference herein to the extent that they are applicable to the Contract and required by law to be so incorporated. Agency’s performance under the Contract is conditioned upon Contractor's compliance with the provisions of ORS 279B.220, 279B.225, 279B.230, 279B.235 and 279B.270 which are incorporated by reference herein. Contractor shall, to the maximum extent economically feasible in the performance of this Contract, use recycled paper (as defined in ORS 279A.010 (1) (gg)), recycled PETE products (as defined in ORS 279A.010 (1) (hh)), and other recycled products (as “recycled product” is defined in ORS 279A.010 (1) (ii)).

14.2. Compliance with Oregon Tax Laws.

14.2.1. Contractor shall, throughout the duration of this Contract, comply with all tax laws of this state and all applicable tax laws of any political subdivision of this state. For the purposes of this section, “tax laws” includes the tax laws described in Section 8.1.5.1 through 8.1.5.4.

OregonBuys Bid# S-62900-00006600 – John Day Exclusive Use Fixed Wing Detection Aircraft Services Att A

DAS Procurement Services, Version 2.2 – March 6, 2019 Page 11 of 30

14.2.2. Any violation of Section 14.2.1 constitutes a material breach of this Contract. Further, any violation of Contractor’s warranty in Section 8.1. of this Contract that Contractor has complied with the tax laws of this state and the applicable tax laws of any political subdivision of this state also constitutes a material breach of this Contract.

14.3. Compliance with Federal Law. Contractor shall comply with all applicable federal laws.

14.4. Pay Equity. As required by ORS 279B.235, Contractor shall comply with ORS 652.220 and shall not unlawfully discriminate against any of Contractor’s employees in the payment of wages or other compensation for work of comparable character on the basis of an employee’s membership in a protected class. “Protected class” means a group of persons distinguished by race, color, religion, sex, sexual orientation, national origin, marital status, veteran status, disability, or age. Contractor’s compliance with this section constitutes a material element of this Contract and a failure to comply constitutes a breach that entitles Agency to terminate this Contract for cause.

Contractor may not prohibit any of Contractor’s employees from discussing the employee’s rate of wage, salary, benefits, or other compensation with another employee or another person. Contractor may not retaliate against an employee who discusses the employee’s rate of wage, salary, benefits, or other compensation with another employee or another person.

15. Governing Law; Venue and Jurisdiction.

15.1. Governing Law. This Contract is governed by and construed in accordance with the laws of the State of Oregon without regard to principles of conflicts of law.

15.2. Venue and Jurisdiction. Any claim, action, suit, or proceeding between Agency (or any other agency or department of the State of Oregon) and Contractor that arises from or relates to this Contract must be brought and conducted solely and exclusively within the Circuit Court of Marion County for the State of Oregon. CONTRACTOR, BY EXECUTION OF THIS CONTRACT, HEREBY CONSENTS TO THE IN PERSONAM JURISDICTION OF SAID COURTS. In no event may this section be construed as (i) a waiver by the State of Oregon of any form of defense or immunity, whether it is sovereign immunity, governmental immunity, immunity based on the Eleventh Amendment to the Constitution of the United States, or otherwise, from any claim, action, suit, or proceeding, or (ii) consent by the State of Oregon to the jurisdiction of any court.

16. Miscellaneous Provisions.

16.1. Records Maintenance; Access. Contractor shall maintain all financial records relating to this Contract in accordance with generally accepted accounting principles. In addition, Contractor shall maintain any other records, books, documents, papers, plans, records of shipments and payments, and writings of Contractor, whether in paper, electronic, or other form, that are pertinent to this Contract (“Records”) in such a manner as to clearly document Contractor's performance. Contractor acknowledges and agrees that Agency and the Oregon Secretary of State's Office and the federal government and their duly authorized representatives will have access to such financial records and other Records that are pertinent to this Contract, whether in paper, electronic, or other form, to perform examinations and audits and make excerpts and transcripts. Contractor shall retain and keep accessible all such financial records and other Records for a minimum of 6 years, or such longer period as may be required by applicable law, following final payment and termination of this Contract, or until the conclusion of any audit, controversy, or litigation arising out of or related to this Contract, whichever date is later.

OregonBuys Bid# S-62900-00006600 – John Day Exclusive Use Fixed Wing Detection Aircraft Services Att A

DAS Procurement Services, Version 2.2 – March 6, 2019 Page 12 of 30

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

Contractor shall demonstrate its legal capacity to perform the Services under this Contract in the State of Oregon prior to entering into this Contract.

16.3. Force Majeure. Neither Agency nor Contractor may be held responsible for delay or default caused by 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 Contractor, respectively. Contractor 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 this Contract.

16.4. Survival. All rights and obligations cease upon termination or expiration of this Contract, except for the rights and obligations and declarations which expressly or by their nature survive termination of this Contract, including without limitation this Section 16.4, and provisions regarding Contract definitions, warranties, and liabilities, independent Contractor status and taxes and withholding, maximum compensation, Contractor’s duties of confidentiality, ownership and license of intellectual property and Deliverables, confidentiality and non-disclosure, Contractor’s representations and warranties, control of defense and settlement, remedies, return of Agency property, dispute resolution, order of precedence, maintenance and access to records, notices, severability, successors and assigns, third party beneficiaries, waiver, headings, and integration.

16.5. Time is of the Essence. Contractor agrees that time is of the essence under this Contract.

16.6. Notice. Except as otherwise expressly provided in this Contract, any communications between the Parties hereto or notices to be given hereunder must be given in writing by email, personal delivery, facsimile, or mailing the same, postage prepaid, to Contractor or Agency at the email address, postal address, or telephone number set forth in this Contract, or to such other addresses or numbers as either party may indicate pursuant to this Section 16.6. Any communication or notice so addressed and mailed is effective five business days after mailing. Any communication or notice delivered by facsimile is effective on the day the transmitting machine generates a receipt of the successful transmission, if transmission was during normal business hours, or on the next business day, if transmission was outside normal business hours of the recipient. To be effective against Agency, any notice transmitted by facsimile must be confirmed by telephone notice to Agency’s Contract Administrator. Any communication or notice given by personal delivery is effective when actually delivered. Any notice given by email is effective when the sender receives confirmation of delivery, either by return email, or by demonstrating through other technological means that the email has been delivered to the intended email address.

16.7. No Third Party Beneficiaries. Agency and Contractor are the only Parties to this Contract and are the only Parties entitled to enforce the terms of this Contract. Nothing in this Contract gives, is intended to give, or may be construed to give or provide any benefit or right not held by or made generally available to the public, whether directly, indirectly, or otherwise, to third persons unless such third persons are individually identified by name herein and expressly described as intended beneficiaries of the terms of this Contract.

16.8. 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 otherwise invalid, the validity of the remaining terms and provisions will not be affected, and the rights and obligations of the Parties will be construed and enforced as if the Contract did not contain the particular term or provision held to be invalid.

OregonBuys Bid# S-62900-00006600 – John Day Exclusive Use Fixed Wing Detection Aircraft Services Att A

DAS Procurement Services, Version 2.2 – March 6, 2019 Page 13 of 30

16.9. Merger Clause; Waiver. This Contract and attached exhibits constitute the entire agreement between the Parties on the subject matter hereof. There are no understandings, agreements, or representations, oral or written, not specified herein regarding this Contract. No waiver, consent, modification or change of terms of this Contract will bind the Parties unless in writing and signed by both Parties and all necessary State approvals have been obtained. Such waiver, consent, modification or change, if made, will be effective only in the specific instance and for the specific purpose given.

The failure of Agency to enforce any provision of this Contract in one instance will not constitute a waiver by Agency of its right to enforce that or any other provision.

16.10. Amendments. Agency may amend this Contract to the extent permitted by applicable statutes and administrative rules. No amendment to this Contract is effective unless it is in writing signed by the Parties and has been approved as required by applicable law.

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

16.12. Oregon False Claims Act. Contractor acknowledges the Oregon False Claims Act, ORS 180.750 to 180.785, applies to any action by Contractor pertaining to this Contract, including the procurement process relating to this Contract that constitutes a "claim" (as defined by ORS 180.750(1)). By its execution of this Contract, Contractor certifies the truthfulness, completeness, and accuracy of any statement or claim it has made, it makes, it may make, or causes to be made that pertains to this Contract. In addition to other penalties that may be applicable, Contractor further acknowledges that if it makes, or causes to be made, a false claim or performs a prohibited act under the Oregon False Claims Act, the Oregon Attorney General may enforce the liabilities and penalties provided by the Oregon False Claims Act against Contractor. Contractor understands and agrees that any remedy that may be available under the Oregon False Claims Act is in addition to any other remedy available to the State or Agency under this Contract or any other provision of law.

16.13. Certifications. The individual signing on behalf of Contractor hereby:

16.13.1. Certifies and swears under penalty of perjury to the best of the individual’s knowledge that: (a) Contractor is not subject to backup withholding because (i) Contractor is exempt from backup withholding, (ii) Contractor has not been notified by the IRS that Contractor is subject to backup withholding as a result of a failure to report all interest or dividends, or (iii) the IRS has notified Contractor that Contractor is no longer subject to backup withholding; (b) s/he is authorized to act on behalf of Contractor, s/he has authority and knowledge regarding Contractor’s payment of taxes, and to the best of her/his knowledge, that Contractor is not in violation of any Oregon tax laws and that for a period of no fewer than six (6) years preceding the Effective Date of this Contract, Contractor faithfully has complied with: (i) all tax laws of this state, including but not limited to ORS 305.620 and ORS chapters 316, 317, and 318; (ii) any tax provisions imposed by a political subdivision of this state that applied to Contractor, to Contractor’s property, operations, receipts, or income, or to Contractor’s performance of or compensation for any work performed by Contractor; (iii) any tax provisions imposed by a political subdivision of this state that applied to Contractor, or to goods, services, or property, whether tangible or intangible, provided by Contractor; and (iv) any rules, regulations, charter provisions, or ordinances that implemented or enforced any of the foregoing tax laws or provisions; (c) Contractor is an independent contractor as defined in ORS 670.600; and (d) the supplied Contractor tax identification numbers are true and accurate;

OregonBuys Bid# S-62900-00006600 – John Day Exclusive Use Fixed Wing Detection Aircraft Services Att A

DAS Procurement Services, Version 2.2 – March 6, 2019 Page 14 of 30

16.13.2. Certifies that, to the best of the undersigned’s knowledge, Contractor has not discriminated against and will not discriminate against any disadvantaged business enterprise, minority-owned business, woman-owned business, business that service-disabled veteran owns, or emerging small business certified under ORS 200.055 in obtaining any required subcontracts;

16.13.3. Certifies that Contractor 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.