RFP_Attachment_E_Sample_Contract~1.pdf

RFP Oregon's Creative Economy Report – S-12300-00017003 Att E

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SAMPLE CONTRACT –PROVISIONS SUBJECT TO CHANGE

STATE OF OREGON PERSONAL / PROFESSIONAL SERVICES CONTRACT

Number _____

Title: _____ This Contract is between the State of Oregon, acting by and through its Oregon Business Development Department (“OBDD”), and ________________(“Contractor”).

1. Effective Date and Duration. This Contract is effective once fully executed, and approved as required by applicable law. Unless terminated or extended, this Contract expires when OBDD accepts Contractor’s performance or on ___________________, _______ whichever date occurs first.

Expiration or termination does not extinguish or prejudice OBDD’s right to enforce this Contract with respect to any breach of a Contractor warranty or any default or defect in Contractor performance that has not been cured.

2. Statement of Work. The Statement of Work (the “Services”), including the delivery schedule for such Services, is contained in Exhibit A, attached.

3. Compensation

a. The [maximum, not-to-exceed compensation] payable to Contractor under this Contract, which includes any allowable expenses, is $____________ and is more particularly described in Exhibit A – Compensation.

b. Any progress payments to Contractor will be made only in accordance with the schedule and requirements in Exhibit A – Compensation.

4. Contract Documents. This Contract consists of the following documents, incorporated by reference, which are listed in descending order of precedence: this Contract less all exhibits, attached Exhibits A and B.

5. Independent Contractor; Responsibility for Taxes and Withholding

a. Contractor will perform all required Services as an independent contractor. Although OBDD reserves the right (i) to determine the delivery schedule for the Services to be performed and (ii) to evaluate the quality of the completed performance, OBDD will not control, and Contractor is responsible for determining, the means and manner of Contractor’s performance.

b. If Contractor is currently performing services for the State of Oregon or the federal government, Contractor by signature to this Contract declares and certifies that: Contractor’s Services to be performed under this Contract create no potential or actual conflict of interest as defined by ORS 244, and no rules or regulations of Contractor’s employing agency (state or federal) prohibit Contractor’s Services under this Contract. Contractor is not an “officer,” “employee,” or “agent” of OBDD, as those terms are used in ORS 30.265.

c. Contractor is responsible for all federal or state taxes applicable to compensation or payments paid to Contractor under this Contract, and unless OBDD is aware that Contractor is subject to backup withholding, OBDD will not withhold from such compensation or payments any amount(s) 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.

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6. Subcontracts and Assignment; Successors and Assigns

a. Except as described in Exhibit A, Contractor cannot enter into any subcontracts for any of the Services required by this Contract, or assign or transfer any of its interest in this Contract, without OBDD’s prior written consent. In addition to any other provisions OBDD may require, Contractor will include in any permitted subcontract under this Contract a requirement that the subcontractor be bound by Sections 5, 6, 10, 11, 14, 15, and 18 of this Contract as if the subcontractor were the Contractor.

OBDD’s consent to any subcontract does not relieve Contractor of any of its duties or obligations under this Contract.

b. The provisions of this Contract are binding upon and will inure to the benefit of the parties hereto, and their respective successors and permitted assigns, if any.

7. No Third Party Beneficiaries. OBDD and Contractor are the only parties to this Contract and are the only parties entitled to enforce its terms. Nothing in this Contract gives, or is to be construed to give any benefit or right, whether directly, indirectly or otherwise, to third persons unless such third persons are individually identified by name and expressly described as intended beneficiaries of the terms of this Contract.

8. Funds Available and Authorized; Payments

a. No other agency or department of the State of Oregon will compensate Contractor for Services performed under this Contract. OBDD has sufficient funds currently available and authorized for expenditure to finance the costs of this Contract within OBDD’s biennial appropriation or limitation.

Contractor understands and agrees that OBDD’s payment of amounts under this Contract attributable to Services performed after the last day of the current biennium is contingent on OBDD receiving from the Oregon Legislative Assembly appropriations, limitations, or other expenditure authority sufficient to allow OBDD, in the exercise of its reasonable administrative discretion, to continue to make payments under this Contract.

b. OBDD will only pay for completed Services that are accepted by OBDD.

9. Representations and Warranties

a. Contractor’s Representations and Warranties. Contractor represents and warrants to OBDD that (1) Contractor has the power and authority to enter into and perform this Contract, (2) this Contract is a valid and binding obligation of Contractor enforceable in accordance with its terms, (3) the Services under this Contract will be performed in accordance with the highest standards prevalent in the industry, and (4) Contractor will, at all times during the term of this Contract, be qualified, professionally competent, and duly licensed to perform the Services.

b. Contractor certifies that it has a policy and practice of preventing sexual harassment, sexual assault and discrimination against employees who are members of a protected class that meets the requirements described in ORS 279A.112, and warrants that it will maintain the policy and practice in force during the entire term of this Contract.

c. Warranties cumulative. The warranties set forth in this section are in addition to, and not in lieu of, any other warranties provided.

10. Ownership of Work Product

a. Definitions. As used in this Section 10, and elsewhere in this Contract, the following terms have the meanings set forth below:

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

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

(iii) “Work Product” means every invention, discovery, work of authorship, trade secret or other tangible or intangible item and all Services that Contractor delivers or is required to deliver to OBDD pursuant to this Contract.

b. Ownership and License. All intellectual property rights in the Work Product created by Contractor pursuant to this Contract, including derivative works and compilations, are the exclusive property of OBDD. All Work Product authored by Contractor under this Contract is deemed “work made for hire” to the extent permitted by the United States Copyright Act. In the event such Work Product is not a “work made for hire”, Contractor hereby irrevocably assigns to OBDD any and all of its rights, title, and interest in such Work Product. Upon OBDD’s reasonable request, Contractor will execute such further documents and instruments reasonably necessary to fully vest such rights in OBDD. Contractor forever waives any and all rights relating to original Work Product created pursuant to this Contract, including without limitation, any and all rights arising under 17 USC §106A or any other rights of identification of authorship or rights of approval, restriction or limitation on use or subsequent modifications.

OBDD grants to Contractor a non-exclusive, royalty-free, perpetual license to use, reuse, print, reprint, publish, republish, reproduce, or otherwise disseminate all or any portion of the Work Product owned by OBDD pursuant to the previous paragraph as OBDD may reasonably deem appropriate from time to time in furthering OBDD’s mission; provided that Contractor shall be required to notify OBDD and obtain consent from OBDD to exercise the rights in the OBDD-owned Work Product in accordance with this section.

In the event that intellectual property rights in the Work Product are Contractor Intellectual Property, Contractor hereby grants to OBDD an irrevocable, non-exclusive, perpetual, royalty-free license to use, make, reproduce, prepare derivative works based upon, distribute copies of, perform and display the Contractor Intellectual Property, and to authorize others to do the same on OBDD’s behalf.

Contractor represents and warrants that it has provided written disclosure to the OBDD of all Third Party Intellectual Property that must be independently licensed by the OBDD to fully enjoy the benefits of the Work Product. If Contractor failed to provide such written disclosure, Contractor will secure on OBDD’s behalf and in the name of OBDD an irrevocable, non-exclusive, perpetual, royalty-free license to use, make, reproduce, prepare derivative works based upon, distribute copies of, perform and display the Third Party Intellectual Property employed in the Work Product, and to authorize others to do the same on OBDD’s behalf.

11. Indemnity

a. Claims for Other than Professional Liability. Contractor will defend (subject to ORS chapter 180), save and hold harmless the State of Oregon, the Oregon Business Development Commission and its members, the Oregon Business Development Department, their officers, agents and employees from all claims, suits or actions of whatsoever nature, including intentional acts resulting from or arising out of the activities of Contractor or its subcontractors, agents or employees under this agreement.

b. Claims for Professional Liability. Contractor will defend (subject to ORS chapter 180), save and hold harmless the State of Oregon, the Oregon Business Development Commission and its members, the Oregon Business Development Department, their officers, agents and employees, from all claims, suits or actions arising out of the professional negligent acts, errors or omissions of Contractor or

Sample Contract Page 4 of 17 its subcontractors and subcontractors, agents or employees in performance of professional services under this agreement.

c. Control of Defense and Settlement. Contractor will have control of the defense and settlement of any claim that is subject to sections 11.a or 11.b; however, neither Contractor nor any attorney engaged by Contractor will defend the claim in the name of the State of Oregon or any agency of the State of Oregon, nor purport to act as legal representative of the State of Oregon or any of its agencies, without first receiving authority to act as legal counsel for the State of Oregon from the Oregon Attorney General, in a form and manner determined appropriate by the Attorney General, nor will Contractor settle any claim on behalf of the State of Oregon without the approval of the Attorney General. The State of Oregon may, at its election and expense, assume its own defense and settlement.

12. Insurance. Contractor will provide insurance as indicated on Exhibit B.

13. Termination

a. Parties’ Right to Terminate For Convenience. This Contract may be terminated at any time by mutual written consent of the parties.

b. OBDD’s Right To Terminate For Convenience. OBDD may, at its sole discretion, terminate this Contract, in whole or in part, upon 30 days notice to Contractor.

c. OBDD’s Right to Terminate For Cause. OBDD may terminate this Contract, in whole or in part, immediately upon notice to Contractor, or at such later date as OBDD may establish in such notice, upon the occurrence of any of the following events:

(i) OBDD fails to receive funding, or appropriations, limitations or other expenditure authority at levels sufficient to pay for Contractor’s Services;

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

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

(iv) Contractor commits any material breach or default of any covenant, warranty, obligation or agreement under this Contract, or fails to perform the Services under this Contract, or so fails to pursue the Services as to endanger Contractor’s performance under this Contract, within the time specified in an applicable notice or any extension thereof.

(v) Contractor has not complied or does not comply with Oregon tax laws as stated in the Contractor Data and Tax Law Certification section below.

d. Contractor’s Right to Terminate for Cause. Contractor may terminate this Contract upon 30 days’ notice to OBDD if OBDD fails to pay Contractor pursuant to the terms of this Contract and OBDD fails to cure within 30 business days after receipt of Contractor’s notice, or such longer period of cure as Contractor may specify in such notice.

e. Remedies

(i) In the event of termination pursuant to Sections 13a, 13b, 13c(i), 13c(ii) or 13d, Contractor’s sole remedy is a claim for the sum designated for accomplishing the Services multiplied by the percentage of Services completed and accepted by OBDD, less previous amounts paid and any claim(s) which State has against Contractor. If previous amounts paid to Contractor exceed the amount due to Contractor under this subsection, Contractor will promptly pay any excess to OBDD.

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(ii) In the event of termination pursuant to Section 13c(iii) - 13c(v), OBDD has any remedy available to it in law or equity. If it is determined for any reason that Contractor was not in default under Section 13c(iii) - 13c(v), the rights and obligations of the parties will be the same as if the Contract was terminated pursuant to Section 13b.

f. Contractor’s Tender Upon Termination. Upon receiving a notice of termination of this Contract, Contractor will immediately cease all activities under this Contract, unless OBDD expressly directs otherwise in such notice. Upon termination of this Contract, Contractor will deliver to OBDD all documents, information, works-in-progress and other property that are or would be deliverables had the Contract been completed. Upon OBDD’s request, Contractor will surrender to anyone OBDD designates, all documents, research or objects or other tangible things needed to complete the Services.

14. Records Maintenance; Access. Contractor will maintain all fiscal records relating to this Contract in accordance with generally accepted accounting principles. In addition, Contractor will maintain any other records pertinent to this Contract in such a manner as to clearly document Contractor’s performance. Contractor acknowledges and agrees that OBDD and the Oregon Secretary of State’s Office and the federal government and their duly authorized representatives have access to such fiscal records and other books, documents, papers, plans and writings of Contractor that are pertinent to this Contract to perform examinations and audits and make excerpts and transcripts. Contractor will retain and keep accessible all such fiscal records, books, documents, papers, plans, and writings for a minimum of six (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.

15. Compliance with Applicable Law. Contractor shall comply with all federal, state and local laws, regulations, executive orders and ordinances applicable to the Services under this Contract.

Without limiting the generality of the foregoing, Contractor expressly agrees to comply with: (i) Title VI of 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) all regulations and administrative rules established pursuant to the foregoing laws; and (v) all other applicable requirements of federal and state civil rights and rehabilitation statutes, rules and regulations. As applicable, Contractor shall comply with the provisions of ORS 279B.220, 279B.230, 279B.235, and 279B.270, which are incorporated by this reference. Contractor shall continue to comply with the tax laws of this state or a political sub-division of this state during the term of the public contract. Contractor shall comply with the prohibition set forth in ORS 652.220, and failure to comply is a breach that entitles OBDD to terminate the contract for cause. [Required by 279B.235]

16. Business Registration. Contractor has provided to the Oregon Department of Revenue and the Secretary of State Corporation Division all information required by those agencies to do business in the State of Oregon relative to this Contract.

17. Force Majeure. Neither OBDD nor Contractor will 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 OBDD or Contractor, respectively. Contractor will, however, make all reasonable efforts to remove or eliminate such a cause of delay or default and will, upon the cessation of the cause, diligently pursue performance of its obligations under this Contract.

18. Survival. All rights and obligations cease upon termination or expiration of this Contract, except for the rights and obligations set forth in Sections 1, 8, 9, 10, 11, 13, 14, 15, 21, 25, and 26.

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

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20. Notices and Communication. Except as otherwise expressly provided in this Contract, any communication between the parties or notices required or permitted must be given in writing by personal delivery, email, or by mailing the same, postage prepaid, to Contractor or OBDD at the addresses set forth below, or to such other persons or addresses that either party may subsequently indicate pursuant to this Section.

Any communication or notice by personal delivery will be deemed effective when actually delivered to the addressee. Any communication or notice so addressed and mailed will be deemed to be received and effective five (5) days after mailing. Any communication or notice given by email becomes effective 1) upon the sender’s receipt of confirmation generated by the recipient’s email system that the notice has been received by the recipient’s email system or 2) the recipient’s confirmation of receipt, whichever is earlier. Notwithstanding this provision, the following notices may not be given by email: notice of default or notice of termination.

OBDD: Deputy Director

Oregon Business Development Department 775 Summer Street Suite 310 Salem, OR 97301-1280

Contractor: According to the Contractor Data and Certification below or to such other addresses or numbers as either party may later designate pursuant to this Section 20. Any notice so addressed and mailed is deemed to be given five (5) days after mailing. Any notice by personal delivery is deemed to be given when actually delivered.

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

22. 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.

23. Oregon False Claims Act. Contractor acknowledges that the Oregon False Claims Act, ORS 180.750 to 180.785, applies to 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.

24. Disclosure of Social Security Number. Contractor must provide Contractor’s Social Security number unless Contractor provides a federal tax ID number. This number is requested pursuant to ORS

305.385. Social Security numbers provided pursuant to this authority will be used for the administration of state, federal and local tax laws.

25. Choice of Law; Designation of Forum; Federal Forum

a. The laws of the State of Oregon (without giving effect to its conflicts of law principles) govern all matters arising out of or relating to this Contract, including, without limitation, its validity, interpretation, construction, performance, and enforcement.

b. Any party bringing a legal action or proceeding against any other party arising out of or relating to this Contract shall bring the legal action or proceeding in the Circuit Court of the State of Oregon for Marion County (unless Oregon law requires that it be brought and conducted in another county). Each party hereby consents to the exclusive jurisdiction of such court, waives any objection to venue, and waives any claim that such forum is an inconvenient forum.

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c. Notwithstanding the preceding paragraph, if a claim must be brought in a federal forum, then it must be brought and adjudicated solely and exclusively within the United States District Court for the District of Oregon. This Section applies to a claim brought against the State of Oregon only to the extent Congress has appropriately abrogated the State of Oregon’s sovereign immunity and is not consent by the State of Oregon to be sued in federal court. This Section is also not a waiver by the State of Oregon of any form of defense or immunity, including but not limited to sovereign immunity and immunity based on the Eleventh Amendment to the Constitution of the United States.

26. 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 binds either party unless in writing and signed by both parties, and all necessary State approvals have been obtained. Such waiver, consent, modification or change, if made, is effective only in the specific instance and for the specific purpose given. The failure of OBDD to enforce any provision of this Contract does not constitute a waiver by OBDD of that or any other provision.

27. Amendments. OBDD may amend this Contract to the extent provided in the solicitation document, if any, from which this Contract arose, and 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 all approvals required by applicable law have been obtained.

28. Attorney Fees and Other Expenses. To the extent permitted by the Oregon Constitution and the Oregon Tort Claims Act, the prevailing party in any dispute arising from this Contract is entitled to recover from the other its reasonable attorney fees, costs and expenses at trial and on appeal. Reasonable attorney fees cannot exceed the rate charged to the State by its attorneys. The Contractor will, on demand, pay to the State reasonable expenses incurred by the State in the collection of such payments.

29. Confidential Information.

a. In the course of performing Services under this Contract, Contractor acknowledges that it and its employees or agents may be exposed to or acquire information that is confidential to OBDD or OBDD’s clients. Any and all information of any form obtained by Contractor or its employees or agents in the performance of this Contract shall be deemed to be confidential information of OBDD (“Confidential Information”). Any reports or other documents or items which result from the use of the Confidential Information by Contractor shall be treated with respect to confidentiality in the same manner as the Confidential Information. Confidential Information shall be deemed not to include information that (i) is or becomes (other than by disclosure by Contractor) publicly known or is contained in a publicly available document; (ii) is furnished by OBDD 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; or (iv) is independently developed by employees or agents of Contractor who can be shown to have had no access to the Confidential Information.

b. Standard of Care. Contractor agrees to hold Confidential Information in strict confidence, using at least the same degree of care that Contractor uses in maintaining the confidentiality of its own confidential information, and not to copy, reproduce, sell, assign, license, market, transfer or otherwise dispose of, give, or disclose Confidential Information to third parties or use Confidential Information for any purposes whatsoever other than the provision of Services to OBDD hereunder, and to advise each of its employees and agents of their obligations to keep Confidential Information confidential.

c. Cooperation. Contractor agrees to comply with all reasonable requests by OBDD to ensure the confidentiality and nondisclosure of the Confidential Information, including without limitation (i)

Sample Contract Page 8 of 17 obtaining nondisclosure agreements, in a form approved by OBDD, from each of Contractor’s employees and agents who are performing Services, and providing copies of such agreements to OBDD, and (ii) performing criminal background checks on each of Contractor’s employees and agents who are performing Services, and providing a copy of the results to OBDD.

CONTRACTOR DATA AND CERTIFICATION

Name (tax filing):

Address:

Email:

Telephone: Facsimile:

Citizenship, if applicable: Non-resident alien Yes No Business Designation (check one):

Private for-profit, or non-profit Corporation Professional Corporation Partnership Limited Partnership Limited Liability Company Limited Liability Partnership Sole Proprietorship Other:

Above payment information must be provided prior to Contract approval. This information may be reported to the Internal Revenue Service (IRS) under the name and taxpayer identification submitted. (See IRS 1099 for additional instructions regarding taxpayer ID numbers.)

Information not matching IRS records could subject Contractor to 31 percent backup withholding.

Certified Firms. ORS 200.090 requires all public agencies to “aggressively pursue a policy of providing opportunities for disadvantaged business enterprises, minority-owned businesses, woman-owned businesses, service-disabled veteran owned and emerging small businesses...” The OBDD encourages Contractor in any contracting activity to follow good faith efforts as described in ORS 200.045. Additional resources are provided by the Governor’s Policy Advisor for Economic and Business Equity. Also, the Certification Office for Business Inclusion and Diversity at the Oregon Business Development OBDD maintains a list of certified firms and can answer questions. Search for certified COBID firms on the web at:

https://oregon4biz.diversitysoftware.com/FrontEnd/SearchCertifiedDirectory.asp.

https://oregon4biz.diversitysoftware.com/FrontEnd/SearchCertifiedDirectory.asp?XID=2315&TN=oregon4biz

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CONTRACTOR DATA AND TAX LAW CERTIFICATION

The undersigned certifies and swears under penalty of perjury that: I am authorized to act on behalf of Contractor, I have authority and knowledge regarding Contractor’s payment of taxes, the taxpayer identification number and other information provided on Contractor’s IRS W-9 form [or for an international vendor: W-8 series form] is correct, Contractor is not subject to tax withholding, and Contractor is not in violation of any state taxes administered by the Department of Revenue under the tax laws of this state and local taxes administered by the Department of Revenue under ORS 305.620. For purposes of this Contract, Oregon tax laws do not include ad valorem property taxes collected by counties. Contractor shall continue to comply with the tax laws of this state or a political subdivision of this state during the term of this Contract.

Contractor, by the signature below of its authorized representative, acknowledges that it has read this Agreement, understands it, and agrees to be bound by its terms and conditions.

CONTRACTOR: NO SERVICES MAY OCCUR PRIOR TO NECESSARY STATE APPROVALS

CONTRACTOR

Approval Signature Title Date

STATE

Approved as to Legal Sufficiency (All Contracts over $250,000, unless exempted) Date

DEPARTMENT

Approval Signature Title Date https://www.irs.gov/pub/irs-pdf/fw8ben.pdf

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EXHIBIT A – STATEMENT OF WORK AND COMPENSATION

a. INTRODUCTION:

b. STATEMENT OF WORK (including deliverables and schedule):

[This is a placeholder and will be completed upon successful negotiation with Contractor.]

EXHIBIT A – COMPENSATION

Time & Materials / Labor-Hour

A. Payment Methodology. OBDD will pay for the actual Services performed under this Contract according to hourly billing rates based on actual pay rates plus the negotiated indirect costs rates (overhead) plus the negotiated profit. OBDD will also pay for reasonable and necessary actual direct non-labor costs itemized separately from the hourly billing rates.

Contractor agrees to invoice all Services at no greater than the hourly billing rates and direct non-labor rates specified in this Contract, and as those rates may be amended. OBDD will not pay Contractor for direct or indirect costs that are unallowable under the provisions of 48 CFR Part 31 (Federal Acquisition Regulations). All travel reimbursement is subject to section H.

B. Basis for Payment. OBDD will pay Contractor all amounts due at the milestones indicated in the Contract upon OBDD’s approval of Contractor’s invoice submitted to OBDD in accordance with the terms of the Contract, but only after OBDD has determined that Contractor has completed, and OBDD has accepted, all required Services, including deliverables, for the milestone at which payment is sought.

If Contractor fails to present invoices in proper form within 90 calendar days after the end of the month when OBDD accepts any deliverables for a milestone, or also within 30 days after the end of the state C. Invoices and Payments. Invoices must include the OBDD contract number. Contractor will submit invoices requesting payment to OBDD’s Contract Administrator for approval. OBDD Contract Administrator is:

[name, title] Oregon Business Development Department 775 Summer Street Suite 310 Salem Oregon 97301-1280 [telephone; fax; Email] or as may be otherwise designated through written notice. Contractor cannot submit invoices any more frequently than once per month. OBDD reserves the right to request, in writing, full itemization and receipts for any or all labor and direct costs billed by the Contractor and such other items of costs as the OBDD requests. Contractor will provide receipts to OBDD within five (5) business days of OBDD’s request. OBDD will not make payment to Contractor under the applicable invoice until OBDD has received all requested receipts from the Contractor. Any overdue payments by OBDD for an approved invoice are subject to ORS 293.462.

D. Corrective Work. Contractor is responsible to complete all Services, including deliverables, as defined in the Statement of Work to the satisfaction of OBDD. If OBDD, in its sole discretion, determines that the Services are unacceptable, Contractor is responsible to correct any deficiencies in the Services to OBDD’s satisfaction without further compensation. OBDD may withhold other payments until any deficiencies have been corrected to OBDD’s satisfaction.

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E. Retainage. OBDD reserves the right to withhold payment equal to ten percent (10%) of the amount of each invoice submitted to OBDD under the Contract, as retainage prior to final payment.

Final payment of any balance due Contractor will be made promptly upon verification of completion and acceptance of the Services by OBDD.

F. Increases. The hourly billing rates and non-labor rates established in this Exhibit will remain fixed for the duration of this Contract. OBDD may, by amendment to this Contract, agree to appropriate increases in the maximum compensation payable under the Contract, should any OBDD-approved increase occur in the scope, character, schedule or complexity of Services as outlined in the Statement of Work. Contractor will not commence any Services authorized under an amendment until that amendment has received all necessary state approvals.

G. Payment Reduction. OBDD, or its duly authorized agents, may audit Contractor’s fiscal records, including certified payroll and overhead records, at any time. If OBDD finds previously undisclosed inaccurate or improper costs have been invoiced and paid, OBDD, in its sole discretion, may reduce the payment for Services by withholding the inaccurate or improper amounts from any future payment to Contractor, withhold the inaccurate or improper amounts from final payment, or use any other means to seek recovery of already paid amounts.

H. Travel. The fixed price includes any travel expenses, therefore Agency will not separately reimburse Contractor for travel expenses incurred under this Contract.

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EXHIBIT B – INSURANCE REQUIREMENTS

Contractor shall obtain at Contractor’s expense the insurance specified in this Exhibit prior to performing under this Contract. Contractor shall maintain such insurance in full force and at its own expense throughout the duration of this Contract, as required by any extended reporting period or continuous claims made coverage requirements, and all warranty periods that apply. Contractor shall obtain the following insurance from insurance companies or entities that are authorized to transact the business of insurance and issue coverage in the State of Oregon and that are acceptable to OBDD. All coverage shall be primary and non-contributory with any other insurance and self-insurance, with the exception of Professional Liability and Workers’ Compensation. Contractor shall pay for all deductibles, self-insured retention, and self-insurance, if any.

If Contractor maintains broader coverage and/or higher limits than the minimums shown in this Exhibit, OBDD requires and shall be entitled to the broader coverage and/or higher limits maintained by Contractor.

WORKERS’ COMPENSATION & EMPLOYERS’ LIABILITY:

All employers, including Contractor, that employ subject workers, as defined in ORS 656.027, shall comply with ORS 656.017, and provide Workers’ Compensation Insurance coverage for those workers, unless they meet the requirement for an exemption under ORS 656.126(2). Contractor shall require and ensure that each of its subcontractors comply with these requirements. If Contractor is a subject employer, as defined in ORS 656.023, Contractor shall also obtain Employers' Liability Insurance coverage with limits not less than $500,000 each accident.

If Contractor is an employer subject to any other state’s Workers’ Compensation law, Contactor shall provide Workers’ Compensation Insurance coverage for its employees as required by applicable Workers’ Compensation laws including Employers’ Liability Insurance coverage with limits not less than $500,000 and shall require and ensure that each of its out-of-state subcontractors complies with these requirements.

As applicable, Contractor shall obtain coverage to discharge all responsibilities and liabilities that arise out of or relate to the Jones Act with limits of no less than $5,000,000 and/or the Longshoremen’s and Harbor Workers’ Compensation Act.

COMMERCIAL GENERAL LIABILITY:

Contractor shall provide Commercial General Liability Insurance covering bodily injury and property damage in a form and with coverage that are satisfactory to the State of Oregon. This insurance must include personal and advertising injury liability, products and completed operations, contractual liability coverage for the indemnity provided under this Contract, and have no limitation of coverage to designated premises, project, or operation. Coverage must be written on an occurrence basis in an amount of not less than $1,000,000 per occurrence and not less than $2,000,000 annual aggregate limit.

AUTOMOBILE LIABILITY INSURANCE:

Required Not required

Contractor shall provide Automobile Liability Insurance covering Contractor’s business use including coverage for all owned, non-owned, or hired vehicles with a combined single limit of not less than $1,000,000 for bodily injury and property damage. This coverage may be written in combination with the Commercial General Liability Insurance (with separate limits for Commercial General Liability and Automobile Liability).

Use of personal automobile liability insurance coverage may be acceptable if evidence that the policy includes a business use endorsement is provided.

PROFESSIONAL LIABILITY:

Required Not required

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Contractor shall provide Professional Liability Insurance covering any damages caused by an error, omission or any negligent acts related to the services to be provided under this Contract by the Contractor and Contractor’s subcontractors, agents, officers or employees in an amount not less than $1,000,000 per claim and not less than $2,000,000 annual aggregate limit.

If coverage is provided on a claims made basis, then either an extended reporting period of not less than 24 months shall be included in the Professional Liability insurance coverage, or the Contractor shall provide Continuous Claims Made coverage as stated below.

EXCESS/UMBRELLA INSURANCE:

A combination of primary and Excess/Umbrella Insurance may be used to meet the required limits of insurance. When used, all of the primary and umbrella or excess policies must provide all of the insurance coverages required herein, including, but not limited to, primary and non-contributory, additional insured, Self- Insured Retentions (SIRs), indemnity, and defense requirements. The umbrella or excess policies must be provided on a true “following form” or broader coverage basis, with coverage at least as broad as provided on the underlying insurance. No insurance policies maintained by the Additional Insureds, whether primary or excess, and which also apply to a loss covered hereunder, must be called upon to contribute to a loss until the Contractor’s primary and excess liability policies are exhausted.

If Excess/Umbrella Insurance is used to meet the minimum insurance requirement, the Certificate of Insurance must include a list of all policies that fall under the Excess/Umbrella Insurance.

ADDITIONAL INSURED:

All liability insurance, except for Workers’ Compensation, Professional Liability, Directors and Officers Liability and Network Security and Privacy Liability (if applicable), required under this Contract must include an Additional Insured endorsement specifying the State of Oregon, its officers, employees, and agents as Additional Insureds, but only with respect to Contractor’s goods to be delivered and Services to be performed under this Contract. Coverage shall be primary and non-contributory with any other insurance and self-insurance.

Regarding Additional Insured status under the General Liability policy, Agency requires Additional Insured status with respect to liability arising out of ongoing operations and completed operations, but only with respect to Contractor's goods to be delivered and Services to be performed under this Contract. The Additional Insured endorsement with respect to liability arising out of Contractor’s ongoing operations must be on, or at least as broad as, ISO Form CG 20 10 and the Additional Insured endorsement with respect to completed operations must be on, or at least as broad as, ISO form CG 20 37.

WAIVER OF SUBROGATION:

Contractor shall waive rights of subrogation which Contractor or any insurer of Contractor may acquire against the Agency or State of Oregon by virtue of the payment of any loss. Contractor shall obtain any endorsement that may be necessary to affect this waiver of subrogation, but this provision applies regardless of whether or not Agency has received a Waiver of Subrogation endorsement from the Contractor or the Contractor’s insurer(s).

CONTINUOUS CLAIMS MADE COVERAGE:

If any of the required liability insurance is on a claims made basis and does not include an extended reporting period of at least 24 months, then Contractor shall maintain continuous claims made liability coverage, provided the effective date of the continuous claims made coverage is on or before the effective date of this Contract, for a minimum of 24 months following the later of:

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(i) Contractor ’s completion and Agency’s acceptance of all goods and Services required under this Contract, or

(ii) Agency’s or Contractor’s termination of this Contract, or

(iii) The expiration of all warranty periods provided under this Contract.

CERTIFICATE(S) AND PROOF OF INSURANCE:

Contractor shall provide to Agency Certificate(s) of Insurance for all required insurance before delivering any goods and performing any Services required under this Contract. The Certificate(s) of Insurance must list the State of Oregon, its officers, employees, and agents as a Certificate holder and as an endorsed Additional Insured. The Certificate(s) of Insurance must also include all required endorsements or copies of the applicable policy language effecting coverage required by this Contract. If excess/umbrella Insurance is used to meet the minimum insurance requirement, the Certificate(s) of Insurance must include a list of all policies that fall under the Excess/Umbrella Insurance. As proof of insurance, Agency has the right to request copies of insurance policies and endorsements relating to the insurance requirements under this Exhibit.

NOTICE OF CHANGE OR CANCELLATION:

Contractor or its insurer shall provide at least 30 calendar days’ written notice to Agency before cancellation of, material change to, potential exhaustion of aggregate limits of, or non-renewal of the required insurance coverage(s).

INSURANCE REQUIREMENT REVIEW:

Contractor agrees to periodic review of insurance requirements by Agency under this Contract and to provide updated requirements as mutually agreed upon by Contractor and Agency.

STATE ACCEPTANCE:

All insurance providers are subject to Agency acceptance. If requested by Agency, Contractor shall provide complete copies of insurance policies, endorsements, self-insurance documents and related insurance documents to Agency’s representatives responsible for verification of the insurance coverages required under this Exhibit.