RFPAttA.docx

ATTACHMENT A to RFP # DEQ-1215-21 – On call - Diversity, Equity, and Inclusion Services

STATE OF OREGON

DEPARTMENT OF ENVIRONMENTAL QUALITY

Price Agreement # On Call: Diversity, Equity, and Inclusion XX Services This Price Agreement (“Agreement”) is between the State of Oregon, acting by and through the Department of Environmental Quality (“DEQ”), and [selected contractor] (“Contractor”) (collectively referred to as the “Parties” and individually as a “Party” in this Agreement).

RECITALS

DEQ issued Request for Proposal DEQ-1215-21 (the “RFP”) seeking proposals for the Diversity, Equity, and Inclusion (“DEI”) Services described in Section 5 below.

Contractor submitted its proposal on [date]. Following DEQ’s evaluation of proposals submitted, Contractor’s Proposal was selected for Award.

DEQ and Contractor desire to enter this Agreement to establish the terms and conditions for future contracts for services issued through individual Work Order Contracts. This Agreement is a Price Agreement as that term is used in ORS 279B.140 and constitutes a firm offer by Consultant Contractor that is enforceable for the period stated in this Agreement, meaning that it is not revocable by Contractor.

Therefore, DEQ and Contractor agree as follows:

1. AGREEMENT EFFECTIVE DATE AND DURATION

This Agreement is effective on the date it is signed by DEQ and Contractor (“Effective Date”). Unless terminated or extended, this Agreement expires [date] (“Initial Term”). Expiration shall not extinguish or prejudice DEQ’s right to enforce this Agreement with respect to any breach of a Contractor warranty or any default or defect in Contractor performance that has not been cured prior to the expiration of the Agreement. The duration of this Agreement may be extended from time to time as agreed to by the Parties.

2. PURPOSE OF AGREEMENT AND NONBINDING NATURE

The purpose of the Agreement is to establish the terms and conditions applicable to, and the general form of ordering instrument to be used for, Contracts for Services entered into between DEQ and Contractor according to Section 6 below. Contractor will provide DEQ with statewide DEI services “as needed” by DEQ. This Agreement, by itself, is a Price Agreement as that term is used in ORS 279A.140 and constitutes a firm offer by Contractor, but, until DEQ issues an order that results in a Contract for Services, DEQ makes no promise or representation that DEQ will request any Services from Contractor under this Agreement.

2.1. Contractor shall provide DEI services to the DEQ using the following process:

2.1.1. DEQ’s authorized representative will contact Contractor’s Authorized Representative with project information, Responsible Key Persons, Costs, and timeline;

2.1.2. Consultant’s Authorized Representative will provide a detailed proposal narrative and proposed budget to the DEQ for review;

2.1.3. If DEQ wishes to use Consultant’s services based on the detailed proposed narrative and proposed budget, DEQ will prepare a Work Order Contract based on the detailed proposed narrative and proposed budget from Contractor and using the attached Work Order Contract and will sign and return that Work Order Contract to Contractor;

2.1.4. Contractor will sign the Work Order Contract form and return a copy to DEQ.

This Agreement states the general terms and conditions that apply to each Work Order Contract submitted from DEQ to Contractor that forms the basis of an independent contract.

3. NON-EXCLUSIVE AGREEMENT

This is a non-exclusive Agreement. This Agreement is not a guarantee that any specific level of services are or will be ordered under this Agreement, nor does this Agreement constitute a promise that DEQ will enter into one or more Contracts for Services with Contractor. Notwithstanding this Agreement, DEQ reserves the right to acquire Services through any process authorized by law, or to provide the Services itself.

4. AGREEMENT DOCUMENTS

This Agreement consists of the following documents, which are interpreted in the following order of precedence: (1) the Agreement less all exhibits; (2) Exhibit A, Contract Terms; (3) Exhibit B, Pricing [Special Provisions (for facilitation services only) and Implementation Plan (for consultation services only)]; and (4) Exhibit C, Work Order Contract. Comment by TRAN Lisa: Facilitation ONLY. Comment by TRAN Lisa: Consultation ONLY.

5. GENERAL DESCRIPTION OF SERVICES AND OBLIGATIONS OF PARTIES

This Agreement establishes the terms and conditions for Contracts for Services entered into for [Specific] DEI Services according to the provisions described in Exhibit B, Pricing and Special Provisions (the “Services”) and elsewhere in this Agreement.

5.1. Contractor shall perform the work set forth in Exhibit A attached hereto and incorporated herein by this reference and as specified in each individual Work Order Contract.

5.2. DEQ shall pay Contractor as described in Section 7.

6. CONTRACTING PROCESS AND BINDING EFFECT

DEQ and Contractor may in the future enter into binding and enforceable Contracts for Services by DEQ sending Contractor a Work Order Contract by email (“Work Order Contract”), attached as Exhibit C. Each Work Order must specify the particular Services to be delivered, acceptance criteria, and the price for the Services.

Contract for Services means the Work Order Contract and this entire Agreement (with exhibits). Each Work Order Contract issued according to this Agreement creates a separate Contract for Services between DEQ and Contractor that is enforceable according to its terms and the terms in the Price Agreement and is independent of all other Work Order contracts. A mutually executed Work Order creates a Contract upon the latest execution date between both Parties.

7. PAYMENT TERMS

7.1. The maximum amount of payments for all Work Order Contracts under this Agreement shall not exceed $[500,000 for all services, may be lower if multiple Price Agreements awarded].

7.2. DEQ will pay Contractor as described in Exhibit A, Section 2 only for Services that meet the requirements of the applicable Work Order Contract. Whether Services meet the requirements will be determined by DEQ in the exercise of its reasonable discretion.

7.3. If payments to Contractor under this Agreement, or any other agreement between DEQ and Contractor, exceed the amount to which Contractor is entitled, DEQ may, after notifying Contractor in writing, withhold from payments due Contractor under this Agreement, such amounts, over such periods of times, as are necessary to recover the amount of the overpayment.

8. INSURANCE

Contractor shall obtain and maintain the required insurance coverage throughout the term of this Agreement and all Contracts. The types and amounts of required insurance is specified in Exhibit A, Section 10. Contractor shall obtain and maintain all required insurance in a form and with a surety satisfactory to DEQ.

9. TERMINATION

9.1. Parties’ Right to Terminate for Mutual Consent. This Agreement may be terminated at any time by mutual written consent of DEQ and Contractor.

9.2. DEQ’s Right to Terminate for Convenience. DEQ may, at its sole discretion, terminate this Agreement, in whole or in part, upon 30 Calendar Days written notice to Contractor.

10. DEFINITIONS

In addition to the terms defined in this Agreement, all other capitalized terms used but not defined in this Agreement are defined in the Attorney General’s Model Public Contract Rules (OAR Chapter 137), and if not defined there, then in the Public Contracting Code (ORS Chapters 279A, 279B, and 279C).

11. AMENDMENTS

DEQ may amend this Price Agreement to the extent permitted by applicable statutes and administrative rules, including but not limited to OAR 137-047-0800. To be effective, an amendment to this Price Agreement must be in writing signed by the Parties and contain all approvals required by applicable law.

12. NOTICES

Any communications between the Parties or notices to be given hereunder shall be given in writing by e-mail, personal delivery of, facsimile transmission of, or mailing the same, postage prepaid, to Contractor at the address or number set forth below and to DEQ at the address or number set forth below, or to such other addresses or numbers as either Party may hereafter indicate pursuant to this Section 12. Any communication or notice so addressed and mailed shall be deemed to be received five (5) calendar days after the date of mailing. Any communication or notice delivered by either e-mail or facsimile shall be deemed to be received when the transmitting computer or machine generates receipt of the transmission. To be effective against DEQ, such e-mail and facsimile transmissions must be confirmed by telephone notice to DEQ’s Authorized Representative. Any communication or notice by personal delivery shall be deemed to be received when actually received by the appropriate Authorized Representative.

12.1. Contractor’s Authorized Representative

12.2. DEQ’s Authorized Representative

13. PUBLICITY

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

AUTHORIZED SIGNATURES

Contractor By (Name/Title) Date

State of Oregon acting by and through the Department of Environmental Quality By (Name/Title) Date Form of Contract Approved as to Legal Sufficiency By (Name/Title) Date

Price Agreement #[####]

EXHIBIT A

Contract Terms

1. SERVICES PAYMENT OBLIGATION

DEQ will pay only for Services that meet the requirements specified in this Agreement upon receipt and approval of an invoice under Section 2. If DEQ determines that any Services do not meet its requirements, DEQ shall notify Contractor of DEQ’s rejection of the Services.

Upon receipt of notice of non-acceptance, Contractor shall work with DEQ at Contractor’s sole expense to ensure that the Services meet DEQ’s requirements and/or provide a corrective action plan for future Services. DEQ shall thereafter review with Contractor and provide feedback within ten (10) business days of receipt of Contractor's delivery.

Failure of the Services and/or corrective action plan to meet the requirements re-delivery following DEQ’s initial rejection of the Services shall constitute a default by Contractor. Upon such default, DEQ may either (i) notify Contractor of such default and instruct Contractor to modify or replace the Services or (ii) notify Contractor of such default and instruct Contractor to cease work, in which case Contractor shall refund to DEQ all amounts paid by DEQ related to such Services, if any. Such refund is in addition to, and not in lieu of, any other remedies DEQ may have for Contractor’s default.

· Price Agreement # [####];

· Work Order Contract #;

· Description of the Services in sufficient detail to reconcile invoice to Work Order Contract and any amendments; and

· Total payment requested.

Agreement expiration does not terminate any other contract between DEQ and Contractor, or the Agreement. If the Agreement expires or is terminated prior to Agreement expiration, this Agreement will remain in effect for the outstanding term of the Agreement, unless this Agreement is terminated earlier according to its terms. The terms of the Agreement will continue to be incorporated into this Agreement and will remain in effect solely for such purpose.

The warranties specified in this section are in addition to, and not in lieu of, any other warranties provided. All warranties are cumulative and will be interpreted broadly to give DEQ the greatest warranty protection available. Contractor represents and warrants that:

Titles VI and VII of the Civil Rights Act of 1964, as amended;

Sections 503 and 504 of the Rehabilitation Act of 1973, as amended;

the Americans with Disabilities Act of 1990, as amended;

Executive Order 11246, as amended;

The Health Insurance Portability and Accountability Act of 1996;

The Age Discrimination in Employment Act of 1967, as amended, and the Age Discrimination Act of 1975, as amended;

The Vietnam Era Veterans’ Readjustment Assistance Act of 1974, as amended;

ORS Chapter 659, as amended;

All regulations and administrative rules established pursuant to the foregoing laws; and All other applicable requirements of federal and state civil rights and rehabilitation statutes, rules and regulations

Contractor agrees that time is of the essence in the performance of its obligations under this Agreement.

Neither DEQ nor Contractor are responsible for any failure to perform or for any delay in the performance of any obligation under this Agreement caused by fire, riot, acts of God, terrorism, war, or any other cause which is beyond the breaching party's reasonable control. Contractor shall, however, make all reasonable efforts to remove or eliminate the cause of Contractor’s delay or breach and shall, upon the cessation of the cause, continue performing under this Contract. DEQ may terminate this Agreement upon written notice to Contractor after DEQ reasonably determines that the delay or breach will likely prevent successful performance of this Agreement.

10. INSURANCE

Contractor shall obtain at Contractor’s expense the insurance specified in this Exhibit A prior to performing under this Agreement and shall maintain it in full force and at its own expense throughout the duration of this Agreement and all warranty periods. Contractor shall obtain the insurance coverage specified in this Exhibit A, Section 10 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 DEQ.

Contractor shall pay for all deductibles, self-insured retention and self-insurance, if any. Contractor shall immediately notify DEQ of any change in insurance coverage.

14.1.2 Contractor no longer holds a license or certificate that is required for Contractor to perform its obligations under this Agreement and Contractor has not obtained the license or certificate within 10 business days after DEQ delivers notice of breach to Contractor or a longer period as DEQ may specify in the notice; or

These remedies are cumulative to the extent the remedies are not inconsistent, and State of Oregon may pursue any remedy or remedies singly, collectively, successively or in any order whatsoever. If it is determined for any reason that Contractor was not in breach under Exhibit A, Section 14, the rights and obligations of the parties shall be the same as if this Agreement was terminated pursuant to Exhibit A, Section 16.

Contractor shall stop performance under this Agreement as directed by DEQ in any written notice of termination delivered to Contractor under this Exhibit A, Section 16.1.

Contractor shall retain, maintain, and keep accessible all records relevant to the Agreement ("Records") for minimum of six (6) years, or a longer period as may be required by applicable law, following Agreement termination or full performance, or until the conclusion of any audit, controversy or litigation arising out of or related to the Agreement, whichever ending is later. Contractor shall maintain all financial Records according to generally accepted accounting principles. During this Record-retention period, Contractor shall permit State of Oregon, its duly authorized representatives, and the federal government access to the Records at reasonable times and places for purposes of examination and copying.

18. CONFIDENTIAL INFORMATION

To the extent this Contract requires DEQ to keep any Contractor materials or information confidential, Contractor acknowledges and agrees that DEQ’s obligations to do so are subject to the Oregon Public Records Laws, ORS 192.311 through ORS 192.460.

20. GOVERNING LAW

This Contract and the Agreement are governed by and construed according to the laws of State of Oregon, without regard to principles of conflicts of laws.

21. VENUE; CONSENT TO JURISDICTION

Any claim, action, or suit (collectively, “Proceeding”) between State of Oregon and Contractor that arises from or relates to the Agreement (including any Work Order Contract) will be brought and conducted within the Circuit Court of the State of Oregon for Marion County; provided, however, if a Proceeding must be brought in a federal forum, then unless otherwise prohibited by law, it will be brought and conducted within the United States District Court for the District of Oregon. CONTRACTOR HEREBY CONSENTS TO THE IN PERSONAM JURISDICTION OF THESE COURTS AND WAIVES ANY OBJECTION TO VENUE IN THESE COURTS AND ANY CLAIM THAT THE FORUM IS AN INCONVENIENT FORUM. Nothing in these provisions shall be construed as a waiver of State of Oregon's sovereign or governmental immunity, whether derived from the Eleventh Amendment to the United States Constitution or otherwise, or a waiver of any defenses to Proceedings or jurisdiction based thereon.

22.1.1 Approval of Subcontracts. Contractor shall not enter into any subcontracts for any Services required under this Agreement without prior written notice to DEQ.

22.1.2 Subcontractor Obligations. In addition to any other provisions DEQ may require, Contractor shall include in any permitted subcontract provisions to ensure that DEQ will receive the benefit of subcontractor’s performance as if the subcontractor were Contractor with respect to Exhibit A, Section 5, Representations and Warranties; Exhibit A, Section 6, Compliance with Applicable Laws and Standards; Exhibit A, Section 8, Time is of the Essence; Exhibit A, Section 10, Insurance; Exhibit A, Section 12, Indemnification; Limitation of Liability;, Exhibit A, Section 17, Access to Records; Exhibit A, Section 18, Confidentiality; and Exhibit A, Section 22, Subcontracts; Assignment; Successors.

22.1.3 Contractor Obligations. DEQ’s consent to any subcontract shall not relieve Contractor of any of its duties or obligations under this Agreement.

State of Oregon and Contractor are the only parties to this Agreement and are the only parties entitled to enforce the terms of this Agreement. Nothing in this Agreement gives, is intended to give, or will 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 the third persons are individually identified by name herein and expressly described as intended beneficiaries of the terms of this Agreement.

24. SEVERABILITY

If any provision of this Agreement is declared by a court of competent jurisdiction to be illegal or otherwise invalid, the validity of the remaining terms and provisions shall not be affected, and the rights and obligations of the Parties shall be construed and enforced as if this Agreement did not contain the particular provision held to be invalid.

25. COUNTERPARTS

This Agreement 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 this Agreement so executed constitutes an original.

26. SURVIVAL

In addition to all provisions which by their nature extend beyond Agreement termination or full performance, the following provisions remain in effect beyond any contract termination or full performance: Exhibit A, Section 2.3, Payments; Exhibit A, Section 5.4, Representations and Warranties; Exhibit A, Section 11.3, Independent Contractor Status; Responsibility for Taxes and Withholding; Exhibit A, Section 12, Indemnification, Limitation of Liability; Exhibit A, Section 13, Assignment of Antitrust Rights; Exhibit A, Section 15, Remedies; Exhibit A, Sections 16.3 and 16.4, Termination; Exhibit A, Section 17, Access to Records; Exhibit A, Section 18, Confidential Information, Exhibit A, Section 20, Governing Law; Exhibit A, Section 21, Venue; Consent to Jurisdiction; Exhibit A, Section 23, Third Party Beneficiaries; Exhibit A, Section 26, Survival.

27. WAIVER

No waiver of or consent to terms of this Agreement binds either Party unless in writing and signed by DEQ and Contractor, and all necessary approvals have been obtained. Waivers and consents are effective only in the specific instance and for the specific purpose given. The failure of either party to enforce any provision of this Agreement is not a waiver by such party of that or any other provision.

28. INTEGRATION AND MERGER

This Agreement (including the Work Order Contract, the Price Agreement and Price Agreement Exhibits) and its attachments constitute the entire agreement between the parties on the subject matter thereof. There are no understandings, agreements, or representations, oral or written, not specified herein regarding this Contract.

29. CONTRACTOR CERTIFICATIONS

The undersigned, if this Agreement is a signed hard copy, or the individual accepting and fulfilling this Agreement, if it is in a form other than hard copy (together, “Contractor Representative”), certifies under penalty of perjury both individually and on behalf of Contractor that:

In the event that Contractor or its personnel are either employed by or performing services for the federal government, that no rules or regulations of the agency for which Contractor or its personnel work or are employed prohibit Contractor or its personnel from providing the Work under this Agreement.

Price Agreement # [####]

EXHIBIT B

Pricing, [Special Provisions, and Implementation Plan]

1. PRICING

DEQ shall pay Contractor for Services provided under this Agreement and a Work Order Contract at the prices not to exceed those specified in this Exhibit B, Section 1.

[Pricing for Services to be inserted upon selection of price agreement contractor based on the selected bid.]

2. SPECIAL PROVISIONS Comment by TRAN Lisa: Facilitation.

In doing this work, Contractor shall provide ample employee support for those learning and for those who have first-hand experience with marginalization, as well as other lived experiences or trauma informed.

Consultant shall handle any information gathered from these conversations within DEQ in a safe and responsible manner. If information is shared from these conversations, employees will be notified ahead of time.

3. IMPLEMENTATION PLAN

[Implementation Plan to be inserted upon selection of price agreement contractor based on the selected bid.]

Price Agreement # [####]

EXHIBIT C

Work Order Contract

The Price Agreement # [####] entered into on [PA Effective Date] between DEQ and Contractor will be amended to add performance of this Work Order Contract.

SCHEDULE: This Work Order Contract is effective on the date this Work Order Contract has been signed by the Parties.

The period of performance and acceptance under this Work Order Contract expires on [date].

COMPENSATION: The maximum, not-to-exceed compensation payable to Contractor under this Work Order Contract is $[$$$$].

Payments authorized by this Work Order Contract will be made only according to the terms of the Price Agreement and after all work authorized by this Work Order Contract is complete and accepted by DEQ.

BACKGROUND: [Insert information]

WORK TO BE ACCOMPLISHED:

Contractor shall complete the following:

Contractor signature indicates acceptance of the terms and conditions of this Work Order under Price Agreement # [####] between DEQ and Contractor.

CONTRACTOR: ____________ Name, Title Date