RFPAttG - SAMPLE TRIBAL AGREEMENT FORM~1.pdf

RFP 5969: Alcohol / Overdose Strategic Prevention Framework – Partnerships for Success

(OregonBuys # S-44300-00010622)

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OHA PSK (reviewed by DOJ 1/3/2019) Updated: 5/10/2023

ATTACHMENT G - SAMPLE TRIBAL

AGREEMENT FORM

NOTE TO PROPOSERS:

Do not submit this Sample Tribal Agreement with your Proposal.

Agreement Number 000000

STATE OF OREGON

TRIBAL AGREEMENT

In compliance with the Americans with Disabilities Act, this document is available in alternate formats such as Braille, large print, audio recordings, Web-based communications, and other electronic formats. To request an alternate format, please send an e-mail to dhs-oha.publicationrequest@state.or.us or call 503-378-

3486 (voice) or 503-378-3523 (TTY) to arrange for the alternative format.

This Agreement is between the State of Oregon, acting by and through its Oregon

Health Authority, hereinafter referred to as “Agency” or “OHA” and

Tribe Name

(insert Program Name if applicable)

Address

Address

Attention: (required)

Telephone: (required)

Fax: (optional)

E-mail address: (required) hereinafter referred to as “Tribe.”

Work to be performed under this Agreement relates principally to Agency’s

(Fill in with name of Office, Program, etc.)

(Insert address)

(Insert city, state, zip)

Agreement Administrator: (Insert Name) or delegate

Telephone: (Required)

E-mail address: (Required) mailto:dhs-oha.publicationrequest@state.or.us

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1. Effective Date and Duration.

This Agreement shall become effective the later of Department of Justice approval or [insert start date] when fully executed by every party upon signature, and when required, approved by Department of Administrative

Services. Unless extended or terminated earlier in accordance with its terms, this Agreement shall expire on [insert end date]. Agreement termination shall not extinguish or prejudice Agency’s right to enforce this Agreement with respect to any default that has not been cured.

2. Agreement Documents.

a. This Agreement consists of this document and includes the following listed exhibits which are incorporated into this Agreement:

(1) Exhibit A, Part 1: Statement of Work

(2) Exhibit A, Part 2: Payment and Financial Reporting

(3) Exhibit A, Part 3: Special Terms and Conditions

(4) Exhibit B: Standard Terms and Conditions

(5) Exhibit C: Subcontractor Insurance Requirements

(6) Exhibit D: Federal Terms and Conditions

(7) Exhibit E: Tribal Agreement Budget

There are no understandings, agreements, or representations, oral or written, regarding this Agreement that are not specified herein.

b. In the event of a conflict between two or more of the documents comprising this Agreement, the language in the document with the highest precedence shall control. The precedence of each of the documents comprising this Agreement is as follows, listed from highest precedence to lowest precedence: this Agreement without

Exhibits, Exhibits E, D, B, and A.

c. For purposes of this Agreement, “Work” means specific work to be performed or services to be delivered by Tribe as set forth in Exhibit

A.

d. The parties recognize that Tribe is entitled to sovereign immunity and is not generally subject to Oregon laws and administrative rules.

However, Tribe desires to enter into this Agreement and to comply with said laws and regulations as a matter of contract only except as noted herein. For purposes of this Agreement, references to Oregon

Revised Statutes and Administrative rules are set forth as a matter of convenience to establish Agreement requirements and should be

000000 / JFG Page 3 of 37 viewed as such rather than as independent legal obligations applicable to Tribe. Tribe’s agreement to comply with any such Oregon Revised

Statutes and Administrative rules is to be construed only as agreement to comply with such requirements as a matter of contract and shall not be construed as a waiver of sovereign immunity except when specifically set forth in Exhibit B, section 6.

3. Consideration.

a. The maximum not-to-exceed amount payable to Tribe under this

Agreement, which includes any allowable expenses, is $[insert amount]. Agency will not pay Tribe any amount in excess of the not-to-exceed amount for completing the Work and will not pay for Work until this Agreement has been signed by all parties.

b. Agency will pay only for completed Work under this Agreement, and may make interim payments as provided for in Exhibit A.

4. Vendor or Subrecipient Determination. In accordance with the State

Controller’s Oregon Accounting Manual, policy 30.40.00.102, Agency’s determination is that:

Tribe is a subrecipient Tribe is a vendor Not applicable

Catalog of Federal Domestic Assistance (CFDA) #(s) of federal funds to be paid through this Agreement: 93.243

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5. Tribe Data and Certification.

a. Tribe Information. Tribe information is provided and set forth below.

PLEASE PRINT OR TYPE THE FOLLOWING INFORMATION:

Tribe Name (exactly as filed with the

IRS):

Street address:

City, state, zip code:

Email address:

Telephone: ( ) Facsimile: ( )

Tribe Proof of Insurance: Tribe shall provide the following information upon submission of the signed Agreement. Workers Compensation Insurance only is required for this Agreement and must be in effect prior to Agreement execution.

Workers’ Compensation Insurance Company (or indicate if self-insured): _______

Policy #: _______________________________ Expiration Date: ___________

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b. Certification. Without limiting the generality of the foregoing, by signature on this Agreement, the undersigned hereby certifies under penalty of perjury that:

(1) Tribe is in compliance with all insurance requirements in this

Agreement and notwithstanding any provision to the contrary, Tribe shall deliver to the Agency Agreement Administrator (see page 1 of this Agreement) the required Certificate(s) of

Insurance within 30 days of execution of this Agreement. By certifying compliance with all insurance as required by this

Agreement, Tribe acknowledges it may be found in breach of the Agreement for failure to obtain required insurance. Tribe may also be in breach of the Agreement for failure to provide

Certificate(s) of Insurance as required and to maintain required coverage for the duration of the Agreement;

(2) RESERVED;

(3) The information shown in Section 5a, “Tribe Information” above is Tribe’s true, accurate and correct information;

(4) To the best of the undersigned’s knowledge, Tribe has not discriminated against and will not discriminate against minority, women, or emerging small business enterprises, or businesses owned by a service-disabled veteran, certified under

ORS 200.055 in obtaining any required subcontracts except to the extent that Tribe engages in tribal preferences in its own governmental operations and such action is not prohibited by federal law applicable to Tribe;

(5) Tribe and Tribe’s employees and agents are not included on the list titled “Specially Designated Nationals” maintained by the

Office of Foreign Assets Control of the United States

Department of the Treasury and currently found at https://www.treasury.gov/resource-center/sanctions/SDN-

List/Pages/default.aspx;

(6) Tribe is not listed on the non-procurement portion of the

General Service Administration’s “List of Parties Excluded from Federal procurement or Non-procurement Programs” found at https://www.sam.gov/portal/public/SAM/;

(7) Tribe is not subject to backup withholding because:

https://www.treasury.gov/resource-center/sanctions/SDN-List/Pages/default.aspx https://www.treasury.gov/resource-center/sanctions/SDN-List/Pages/default.aspx https://www.sam.gov/portal/public/SAM/

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(a) Tribe is exempt from backup withholding;

(b) Tribe has not been notified by the IRS that Tribe is subject to backup withholding as a result of a failure to report all interest or dividends; or

(c) The IRS has notified Tribe that Tribe is no longer subject to backup withholding; and

(8) Tribe Federal Identification Number (FEIN) or Social Security

Number (SSN) provided is true and accurate. If this information changes, Tribe shall provide Agency with the new FEIN or

SSN within 10 days.

THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK

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TRIBE, BY EXECUTION OF THIS AGREEMENT, HEREBY

ACKNOWLEDGES THAT TRIBE HAS READ THIS AGREEMENT,

UNDERSTANDS IT, AND AGREES TO BE BOUND BY ITS TERMS AND

CONDITIONS.

TRIBE: YOU WILL NOT BE PAID FOR WORK PERFORMED PRIOR TO

NECESSARY STATE APPROVALS.

6. Signatures.

[TRIBE]

By:

Authorized Signature Printed Name

Title Date

State of Oregon, acting by and through its Oregon Health Authority

By:

Authorized Signature Printed Name

Title Date

Approved for Legal Sufficiency:

Oregon Department of Justice Date

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ODHS Tribal Agreement (Approved by DOJ 1/25/2024) Updated: 8/6/2024

EXHIBIT A

Part 1

Statement of Work

Note: See RFP 5969 Section 2.4 Scope of Work / Specifications for a description of the tasks to be required from the Contractor under the Contract.

The details of Statement of Work, including specific performance requirements and Completion

Due dates will be negotiated with the highest ranked Proposer pursuant to RFP Section 5.4

Contract Negotiation.

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Part 2

Payment and Financial Reporting

1. Payment Provisions.

a. Tribe Invoice.

Tribe shall send all invoices to OHA’s Contract Administrator at the address specified on page 1, or to any other address as OHA may indicate in writing to

Tribe. Tribe's claims to OHA for overdue payments on invoices are subject to

ORS 293.462.

b. Payments

As consideration for the services provided by Tribe during the period specified in

Section 1., Effective Date and Duration, of this Agreement, OHA will pay Tribe for Completed work in accordance with the approved budget attached hereto as

Exhibit E.

2. Travel and Other Expenses. OHA will not reimburse Tribe for any travel or additional expenses under this Agreement.

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Part 3

Special Provisions

1. Confidentiality of Information.

a. Client Information:

(1) All information as to personal facts and circumstances obtained by the Tribe on the client (“Client Information”) shall be treated as privileged communications, shall be held confidential, and shall not be divulged without the written consent of the client, his or her guardian, or the responsible parent when the client is a minor child, or except as required by other terms of this

Agreement. Nothing prohibits the disclosure of information in summaries, statistical, or other forms which do not identify particular individuals.

(2) The use or disclosure of Client Information shall be limited to persons directly connected with the administration of this

Agreement. Confidentiality policies shall be applied to all requests from outside sources.

(3) If Tribe, or any of its officers, directors, employees, agents, or subcontractor receives or has access to confidential Social

Security Administration (SSA), or Federal Tax Information

(FTI) records in the performance of Work under this

Agreement, Tribe shall comply, and ensure that all of Tribe’s officers, directors, employees, agents, and subcontractors comply, with the following provisions:

(a) With respect to SSA records:

i. Provide a current list of employees and employees of any agent or subcontractor with access to SSA records;

ii. Adhere to, at a minimum, substantially the same security requirements as Agency requires of its employees;

iii. Abide by all relevant Federal laws, restrictions on access, use, disclosure, and the security requirements contained within Agency’s agreement with SSA;

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iv. Provide its employees and agents substantially the same security awareness training as Agency provides its employees; and

v. Include the provisions of this Section 1.a.(3)(a) in any subcontract.

(b) Failure to abide by any of the requirements in this subsection could result in criminal or civil penalties and result in termination of this Agreement.

(c) Tribe may be subject to periodic and ongoing security reviews to ensure compliance with the requirements of

Section 1.a.(3).

(4) Except as prohibited by Section 1.a.(3) above, Agency, Tribe and any subcontractor will share information as necessary to effectively serve Agency clients.

b. Non-Client Information:

(1) Each Party acknowledges that it and any of its officers, directors, employees, and agents may, in the course of performing its responsibilities under the Agreement, be exposed to or acquire information that is confidential to the other Party.

To the extent permitted by law, any and all information of any form provided to a Party or its officers, directors, employees and agents in the performance of the Agreement that reasonably could at the time of its disclosure be understood to be confidential shall be deemed to be confidential information of the originating Party (“Confidential Non-Client Information”).

(2) Confidential Non-Client Information shall be deemed not to include information that:

(a) Is or becomes (other than by disclosure by the Party acquiring such information) publicly known or is contained in a publicly available document except to the extent applicable law still restricts disclosure;

(b) Is furnished by the originating Party to others without restrictions similar to those imposed on the receiving

Party under the Agreement;

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(c) Is rightfully in the receiving Party’s possession without the obligation of nondisclosure prior to the time of its disclosure by the originating Party under the Agreement;

(d) Is obtained from a source other than the originating Party without the obligation of confidentiality;

(e) Is disclosed with the written consent of the originating

Party; or

(f) Is independently developed by the receiving Party’s officers, directors, employees and agents who can be shown to have had no access to the Confidential Non-

Client Information.

(3) Nondisclosure. The receiving Party shall hold all Confidential

Non-Client Information in strict confidence, using at least the same degree of care that it uses in maintaining the confidentiality of its own confidential information; and shall not sell, assign, license, market, transfer or otherwise dispose of, give or disclose Confidential Non-Client Information to third parties; shall not use Confidential Non-Client Information for any purposes whatsoever other than as contemplated by this

Agreement or reasonably related thereto; and shall advise any of its officers, directors, employees and agents that receive or have access to the Confidential Non-Client Information of their obligations to keep Confidential Non-Client Information confidential. These confidentiality obligations do not restrict disclosure of information otherwise qualifying as Confidential

Non-Client Information if the receiving Party can show that either of the following conditions exists: (i) the information was disclosed in response to a subpoena or court order duly issued in a judicial or legislative process, in which case the receiving

Party shall notify the originating Party of the subpoena five days prior to the disclosure, unless such notice could not reasonably be given; or (ii) the disclosure was required to respond to a request for the information made under the Oregon

Public Records Law, ORS 192.311 to 192.478 with respect to

Agency, or similar Public Records Law of the Tribe, with respect to Tribe. The receiving Party shall notify the originating Party of a public records request five days prior to the disclosure.

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c. Upon request and pursuant to the instructions of Agency, Tribe shall return or destroy all copies of Confidential Information, and Tribe shall certify in writing the return or destruction of all Confidential

Information.

d. “Client” means any individual, family or provider:

(1) For whom Agency must provide Services and incidental or specialized Goods, in any combination thereof (“Services and

Incidental Supplies”), according to state, federal law, rule, and policy. Those Services and Incidental Supplies include but are not limited to treatment, care, protection, and support without regard to the proximity of the services being provided;

(2) Who in fact receives and utilizes services provided by Agency primarily for that individual's or family's benefit;

(3) Who is under the custody, care, or both of Agency; or

(4) Who provides direct care or Services and is a proxy or representative of the non-provider Client.

2. Amendments

a. Subject to Section 2.c. below, Agency reserves the right to amend or extend the Agreement under the following general circumstances:

(1) Agency may extend the Agreement for additional periods of time up to a total Agreement period of 4 years, and for additional money associated with the extended period(s) of time. The determination for any extension for time may be based on Agency’s satisfaction with performance of the work or services provided by Tribe under this Agreement.

(2) Agency may periodically amend any payment rates throughout the life of the Agreement proportionate to increases in Portland

Metropolitan Consumer Price Index; and to provide Cost Of

Living Adjustments (COLA) if Agency so chooses. Any negotiation of increases in rates to implement a COLA will be as directed by the Oregon State Legislature. In addition, Agency may periodically amend any payment rates throughout the life of the Agreement to meet current market conditions.

b. Subject to Section 2.c. below, Agency further reserves the right to amend Exhibit A, Part 1, Statement of Work for the following:

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(1) Programmatic changes, additions or modifications deemed necessary to accurately reflect the original scope of work that may not have been expressed in the original Agreement or previous amendments to the Agreement;

(2) Implement additional phases of the Work; or

(3) As necessitated by changes in Code of Federal Regulations, Oregon Revised Statutes, or Oregon Administrative Rules, which, in part or in combination, govern the services provided under this Agreement.

c. Upon identification, by any Party to this Agreement, of any circumstance which may require an amendment to this Agreement, the parties may enter into negotiations regarding the proposed modifications. Any resulting amendment must be in writing and be signed by all parties to the Agreement before the modified or additional provisions are binding on either Party. All amendments must comply with Exhibit B, “Standard Terms and Conditions,” and

Section 20. “Amendments” of this Agreement.

3. Nondiscrimination.

a. Tribe must provide services to Agency clients without regard to race, religion, national origin, sex, age, marital status, sexual orientation or disability (as defined under the Americans with Disabilities Act) except that Tribe may prioritize services to enrolled tribal members and tribal community members unless prohibited by federal law applicable to Tribe. Agreement services must reasonably accommodate the cultural, language, and other special needs of clients.

b. Tribe certifies that Tribe has a written policy and practice that meets the requirements described in ORS 279A.112 for preventing sexual harassment, sexual assault, and discrimination against employees who are members of a protected class. Tribe agrees, as a material term of this Agreement, to maintain such policy and practice in force during the entire Agreement term.

c. As required by ORS 279B.235, Tribe must comply with ORS 652.220 and shall not unlawfully discriminate against any of Tribe’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

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Agreement and a failure to comply constitutes a breach that entitles

Agency to terminate this Agreement for cause.

d. Tribe may not prohibit any of Tribe’s employees from discussing the employee’s rate of wage, salary, benefits, or other compensation with another employee or another person. Tribe 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.

EXHIBIT B

Standard Terms and Conditions

1. Governing Law.

This Agreement shall be governed by, and construed and enforced in accordance with, the laws of the State of Oregon. Any claim, action, suit or proceeding (collectively, “Claim”) between the parties that arises from or relates to this Agreement shall be brought and conducted solely and exclusively within a court of competent jurisdiction. Except as provided in this section, neither party waives any form of defense or immunity, whether sovereign immunity, governmental immunity, immunity based on the eleventh amendment to the Constitution of the United States or otherwise, from any Claim or from the jurisdiction of any court.

2. Compliance with Law. Tribe shall comply with and require all subcontractors to comply with all federal, state and local laws, regulations, executive orders and ordinances applicable to Tribe and this Agreement.

Tribe shall provide workers’ compensation insurance coverage for subject workers as required by federal, state, or Tribal Law as applicable. Tribe must require and ensure that its contractors and subcontractors that employ subject workers as defined in ORS 656.027, comply with ORS 656.017 and provides Workers’ Compensation coverage for those workers, unless they meet the requirements for an exception under ORS 656.126 (2).

3. Independent Contractors. The parties agree and acknowledge that their relationship is that of independent contracting parties and that Tribe is not an

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ORS 30.265 or otherwise.

4. Representations and Warranties.

a. Tribe’s Representations and Warranties. Tribe represents and warrants to Agency that:

(1) Tribe has full power, authority and legal right to make this

Agreement and to incur and perform its obligations hereunder and has taken all necessary action as may be required by Tribe to enter into this Agreement;

(2) This Agreement, when executed and delivered, shall be a valid and binding obligation of Tribe enforceable in accordance with its terms;

(3) Tribe has the skill and knowledge possessed by well-informed members of its industry, trade or profession and Tribe will apply that skill and knowledge with care and diligence to perform the Work in a professional manner and in accordance with standards prevalent in Tribe’s industry, trade or profession;

(4) Tribe shall, at all times during the term of this Agreement, be qualified, professionally competent, and duly licensed to perform the Service; and

(5) Tribe prepared its proposal related to this Agreement, if any, independently from all other proposers, and without collusion, fraud, or other dishonesty.

(6) Tribe is a federally recognized Indian Tribe.

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

5. Funds Available and Authorized; Payments.

a. The State of Oregon’s payment obligations under this Agreement are conditioned upon Agency receiving funding, appropriations, limitations, allotment, or other expenditure authority sufficient to allow Agency, in the exercise of its reasonable administrative discretion, to meet its payment obligations under this Agreement.

Tribe is not entitled to receive payment under this Agreement from any part of Oregon state government other than Agency. Nothing in this Agreement is to be construed as permitting any violation of

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Article XI, Section 7 of the Oregon Constitution or any other law regulating liabilities or monetary obligations of the State of Oregon.

Agency represents that as of the date it executes this Agreement, it has sufficient appropriations and limitation for the current biennium to make payments under this Agreement.

b. Payment Method. Payments under this Agreement will be made by

Electronic Funds Transfer (EFT) and shall be processed in accordance with the provisions of OAR 407-120-0100 through 407-120-0380 or

OAR 410-120-1260 through OAR 410-120-1460, as applicable, and any other Oregon Administrative Rules that are program-specific to the billings and payments. Upon request, Tribe shall provide its taxpayer identification number (TIN) and other necessary banking information to receive EFT payment. Tribe shall maintain at its own expense a single financial institution or authorized payment agent capable of receiving and processing EFT using the Automated

Clearing House (ACH) transfer method. The most current designation and EFT information will be used for all payments under this

Agreement. Tribe shall provide this designation and information on a form provided by Agency. In the event that EFT information changes or Tribe elects to designate a different financial institution for the receipt of any payment made using EFT procedures, Tribe shall provide the changed information or designation to Agency on a

Agency-approved form. Agency is not required to make any payment under this Agreement until receipt of the correct EFT designation and payment information from Tribe.

c. Recovery of Overpayments. IF BILLINGS UNDER THIS

AGREEMENT RESULT IN PAYMENTS TO TRIBE TO WHICH

TRIBE IS NOT ENTITLED, AGENCY MAY, AFTER GIVING

WRITTEN NOTIFICATION TO TRIBE, WITHHOLD FROM

PAYMENTS DUE TO TRIBE SUCH AMOUNTS, OVER SUCH

PERIODS OF TIME, AS ARE NECESSARY TO RECOVER THE

AMOUNT OF THE OVERPAYMENT. NOTHING IN THIS

SECTION SHALL REQUIRE AGENCY TO ACT IN VIOLATION

OF STATE OR FEDERAL LAW OR THE CONSTITUTION OF

THE STATE OF OREGON.

6. LIMITED WAIVER OF SOVEREIGN IMMUNITY [RESERVED]

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7. Tribe Default. Tribe shall be in default under this Agreement upon the occurrence of any of the following events:

a. Tribe fails to perform, observe or discharge any of its covenants, agreements or obligations set forth herein.

b. Any representation, warranty, or statement made by Tribe herein or in any documents or reports relied upon by Agency to measure the delivery of services, the expenditure of payments, or the performance by Tribe is untrue in any material respect when made;

c. RESERVED

d. RESERVED.

8. Agency Default. Agency shall be in default under this Agreement upon the occurrence of any of the following events:

a. Agency fails to perform, observe or discharge any of its covenants, agreements, or obligations set forth herein; or

b. Any representation, warranty or statement made by Agency herein is untrue in any material respect when made.

9. Termination.

a. Tribe Termination. Tribe may terminate this Agreement:

(1) For its convenience, upon at least 45 days advance written notice to Agency;

(2) Upon 45 days advance written notice to Agency, if Tribe does not obtain funding, appropriations and other expenditure authorizations from Tribe’s governing body, federal, state or other sources sufficient to permit Tribe to satisfy its performance obligations under this Agreement, as determined by Tribe in the reasonable exercise of its administrative discretion; or

(3) Upon 30 days advance written notice to Agency, if Agency is in default under the Agreement and such default remains uncured at the end of said 30-day period or such longer period, if any, as

Tribe may specify in the notice.

b. Agency Termination. Agency may terminate this Agreement:

(1) For its convenience, upon at least 45 days advance written notice to Tribe;

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(2) Upon 45 days advance written notice to Tribe, if Agency does not obtain funding, appropriations and other expenditure authorizations from federal, state or other sources sufficient to meet the payment obligations of Agency under this Agreement, as determined by Agency in the reasonable exercise of its administrative discretion. Notwithstanding the preceding sentence, Agency may terminate this Agreement in whole or in part, immediately upon written notice to Tribe or at such other time as it may determine if action by the Oregon Legislative

Assembly or Emergency Board reduces Agency’s legislative authorization for expenditure of funds to such a degree that

Agency will no longer have sufficient expenditure authority to meet its payment obligations under this Agreement, as determined by Agency in the reasonable exercise of its administrative discretion, and the effective date for such reduction in expenditure authorization is less than 45 days from the date the action is taken;

(3) Immediately upon written notice to Tribe if Oregon statutes or federal laws, regulations or guidelines are modified, changed or interpreted by the Oregon Legislative Assembly, the federal government or a court in such a way that Agency no longer has the authority to meet its obligations under this Agreement or no longer has the authority to provide payment from the funding source it had planned to use;

(4) Upon 30 days advance written notice to Tribe, if Tribe is in default under this Agreement and such default remains uncured at the end of said 30-day period or such longer period, if any, as

Agency may specify in the notice;

(5) Immediately upon written notice to Tribe, if any license or certificate required by law or regulation to be held by Tribe or a subcontractor is for any reason denied, revoked, suspended, not renewed or changed in such a way that Tribe or a subcontractor no longer meets requirements to deliver the service. This termination right may only be exercised with respect to the particular part of the Work impacted by the loss of necessary licensure or certification; or

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(6) Immediately upon written notice to Tribe, if Agency determines that Tribe or any of its subcontractors have endangered or are endangering the health or safety of a Tribe Client or others.

c. Mutual Termination. The Agreement may be terminated immediately upon mutual written consent of the parties or at such time as the parties may agree in the written consent.

d. Return of Property. Upon termination of this Agreement for any reason whatsoever, Tribe shall immediately deliver to Agency all of

Agency’s property that are in the possession or under the control of

Tribe in whatever stage of development and form of recordation such

Agency property is expressed or embodied at that time. Upon receiving a notice of termination of this Agreement, Tribe shall immediately cease all activities under this Agreement, unless Agency expressly directs otherwise in such notice of termination.

10. Effect of Termination.

a. Entire Agreement.

(1) Upon termination of this Agreement in its entirety, Agency shall have no further obligation to pay Tribe under this

Agreement.

(2) Upon termination of this Agreement in its entirety, Tribe shall have no further obligation to perform Work under this

Agreement.

b. Obligations and Liabilities. Notwithstanding Section 10.a. above, any termination of this Agreement shall not prejudice any obligations or liabilities of either party accrued prior to such termination.

11. Limitation of Liabilities. EXCEPT FOR LIABILITY TO THIRD

PERSONS ARISING OUT OF OR RELATED TO: (i) EXHIBIT A, PART

3, SECTIONS 1 and 6; (ii) SECTION 12 OF THIS EXHIBIT B; OR (iii)

SECTION 29 OF THIS EXHIBIT B, NEITHER PARTY SHALL BE

LIABLE TO THE OTHER FOR ANY INCIDENTAL OR

CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATED TO

THIS AGREEMENT. NEITHER PARTY SHALL BE LIABLE FOR ANY

DAMAGES OF ANY SORT ARISING SOLELY FROM THE

TERMINATION OF THIS AGREEMENT OR ANY PART HEREOF IN

ACCORDANCE WITH ITS TERMS.

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12. Indemnity/Hold Harmless Provision. Agency and Tribe shall be responsible exclusively with respect to their employees, for providing for employment-related benefits and deductions that are required by law, including but not limited to federal and state income tax deductions, workers compensation coverage, and any retirement contributions. Tribe shall perform the services under this Agreement as an independent contractor.

Tribe and Agency each shall be responsible, to the other, to the extent permitted by the Oregon Constitution, with respect to Agency, subject to the limitations of the Tort Claims Act (ORS 30. 260-30.300), with respect to

Agency, and Tribe’s Tort Claims Act, with respect to the Tribe, only for the acts, omissions, or negligence of its own officers, employees or agents.

13. Insurance. Tribe shall require subcontractors to maintain insurance as set forth in Exhibit C, which is attached hereto.

14. Records Maintenance; Access. Tribe shall maintain all financial records relating to this Agreement in accordance with generally accepted accounting principles. In addition, Tribe shall maintain any other records, books, documents, papers, plans, records of shipments and payments and writings of Tribe, whether in paper, electronic or other form, that are pertinent to this

Agreement in such a manner as to clearly document Tribe's performance. All financial records, other records, books, documents, papers, plans, records of shipments and payments and writings of Tribe whether in paper, electronic or other form, that are pertinent to this Agreement, are collectively referred to as “Records.” Tribe acknowledges and agrees that Agency and the

Oregon Secretary of State's Office and the federal government and their duly authorized representatives shall have access to all Records to perform examinations and audits and make excerpts and transcripts. Tribe shall retain and keep accessible all Records 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 Agreement, or until the conclusion of any audit, controversy or litigation arising out of or related to this Agreement, whichever date is later.

15. Information Privacy/Security/Access. If the Work performed under this

Agreement requires Tribe or its subcontractor(s) to have access to or use of any Agency computer system or other Agency Information Asset for which

Agency imposes security requirements, and Agency grants Tribe or its subcontractor(s) access to such Agency Information Assets or Network and

Information Systems, Tribe shall comply and require all subcontractor(s) to which such access has been granted to comply with OAR 407-014-0300 through OAR 407-014-0320, as such rules may be revised from time to time.

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For purposes of this section, “Information Asset” and “Network and

Information System” have the meaning set forth in OAR 407-014-0305, as such rule may be revised from time to time.

16. Force Majeure. Neither Agency nor Tribe shall be held responsible for delay or default caused by fire, civil unrest, labor unrest, act of nature, or war which is beyond the reasonable control of Agency or Tribe, respectively. Each party shall, however, make all reasonable efforts to remove or eliminate such cause of delay or default and shall, upon the cessation of the cause, diligently pursue performance of its obligations under this Agreement. Agency may terminate this Agreement upon written notice to the other party after reasonably determining that the delay or default will likely prevent successful performance of this Agreement.

17. Assignment of Agreement, Successors in Interest.

a. Neither party shall assign or transfer its interest in this Agreement without prior written approval of the other party. Any such assignment or transfer, if approved, is subject to such conditions and provisions as the approving party may deem necessary. No approval of any assignment or transfer of interest shall be deemed to create any obligation in addition to those set forth in the Agreement.

b. The provisions of this Agreement shall be binding upon and shall inure to the benefit of the parties hereto, and their respective successors and permitted assigns.

18. Subcontracts. Tribe shall not enter into any subcontracts for any of the

Work required by this Agreement without Agency’s prior written consent. In addition to any other provisions Agency may require, Tribe shall include in any permitted subcontract under this Agreement provisions to ensure that

Agency will receive the benefit of subcontractor performance as if the subcontractor were the Tribe with respect to Sections 1, 2, 3, 4, 14, 15, 17, 18, 19, and 21 of this Exhibit B. Agency’s consent to any subcontract shall not relieve Tribe of any of its duties or obligations under this Agreement.

19. No Third Party Beneficiaries. Agency and Tribe are the only parties to this

Agreement and are the only parties entitled to enforce its terms. The parties agree that Tribe’s performance under this Agreement is solely for the benefit of Agency to assist and enable Agency to accomplish its statutory mission.

Nothing in this Agreement gives, is intended to give, or shall be construed to give or provide any benefit or right, whether directly, indirectly or otherwise, to third persons any greater than the rights and benefits enjoyed by the general public unless such third persons are individually identified by

000000 / JFG Page 23 of 37 name herein and expressly described as intended beneficiaries of the terms of this Agreement.

20. Amendments. No amendment, modification or change of terms of this

Agreement shall bind either party unless in writing and signed by both parties and when required the Department of Justice. Such amendment, modification or change, if made, shall be effective only in the specific instance and for the specific purpose given.

21. Severability. The parties agree that if any term or provision of this

Agreement is declared by a court of competent jurisdiction to be illegal or in conflict with any law, the validity of the remaining terms and provisions shall not be affected, and the rights and obligations of the parties shall be construed and enforced as if the Agreement did not contain the particular term or provision held to be invalid. In such event, the parties intend that the illegality or conflict not invalidate the other provisions of this Agreement and the parties shall negotiate in good faith to agree on replacement language for the offending term or provision that will be consistent with the terms of this Agreement.

22. Survival. Sections 1, 4, 5, 6, 9, 10, 11, 12, 13, 14, 15, 19, 22, 27, 28, and 29 of this Exhibit B shall survive Agreement expiration or termination as well as those provisions of this Agreement that by their context are meant to survive. Agreement expiration or termination shall not extinguish or prejudice Agency’s right to enforce this Agreement with respect to any default by Tribe that has not been cured.

23. Notice. Except as otherwise expressly provided in this Agreement, any communications between the parties hereto or notices to be given hereunder shall be given in writing by personal delivery, facsimile, or mailing the same, postage prepaid to Tribe or Agency at the address or number set forth in this Agreement, or to such other addresses or numbers as either party may indicate pursuant to this section. Any communication or notice so addressed and mailed by regular mail shall be deemed received and effective five days after the date of mailing. Any communication or notice delivered by facsimile shall be deemed received and effective on the day the transmitting machine generates a receipt of the successful transmission, if transmission was during normal business hours of the recipient, or on the next business day if transmission was outside normal business hours of the recipient.

Notwithstanding the forgoing, to be effective against the other party, any notice transmitted by facsimile must be confirmed by telephone notice to the other party at number listed below. Any communication or notice given by

000000 / JFG Page 24 of 37 personal delivery shall be deemed effective when actually delivered to the addressee.

24. Headings. The headings and captions to sections of this Agreement have been inserted for identification and reference purposes only and shall not be used to construe the meaning of or to interpret this Agreement.

25. Counterparts. This Agreement and any subsequent amendments may be executed in several counterparts, all of which when taken together shall constitute one agreement binding on all parties, notwithstanding that all parties are not signatories to the same counterpart. Each copy of this

Agreement and any amendments so executed shall constitute an original.

26. Construction. The parties agree and acknowledge that the rule of construction that ambiguities in a written agreement are to be construed against the party preparing or drafting the agreement shall not be applicable to the interpretation of this Agreement.

27. Waiver. The failure of either party to enforce any provision of this

Agreement shall not constitute a waiver by that party of that or any other provision. No waiver or consent shall be effective unless in writing and signed by the party against whom it is asserted.

28. Alternative Dispute Resolution. The parties should attempt in good faith to resolve any dispute arising out of this Agreement. This may be done at any management level, including at a level higher than persons directly responsible for administration of the Agreement. In addition, the parties may agree to utilize a jointly selected mediator or arbitrator (for non-binding arbitration) to resolve the dispute short of litigation.

29. Contribution. If any third party makes any claim or brings any action, suit or proceeding alleging a tort as now or hereafter defined in ORS 30.260

("Third Party Claim") against a party (the "Notified Party") with respect to which the other party ("Other Party") may have liability, the Notified Party must promptly notify the Other Party in writing of the Third Party Claim and deliver to the Other Party a copy of the claim, process, and all legal pleadings with respect to the Third Party Claim. Either party is entitled to participate in the defense of a Third Party Claim, and to defend a Third Party

Claim with counsel of its own choosing. Receipt by the Other Party of the notice and copies required in this paragraph and meaningful opportunity for the Other Party to participate in the investigation, defense and settlement of the Third Party Claim with counsel of its own choosing are conditions precedent to the Other Party’s liability with respect to the Third Party Claim.

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With respect to a Third Party Claim for which the State is jointly liable with the Tribe (or would be if joined in the Third Party Claim ), the State shall contribute to the amount of expenses (including attorneys' fees), judgments, fines and amounts paid in settlement actually and reasonably incurred and paid or payable by the Tribe in such proportion as is appropriate to reflect the relative fault of the State on the one hand and of the Tribe on the other hand in connection with the events which resulted in such expenses, judgments, fines or settlement amounts, as well as any other relevant equitable considerations. The relative fault of the State on the one hand and of the Tribe on the other hand shall be determined by reference to, among other things, the parties' relative intent, knowledge, access to information and opportunity to correct or prevent the circumstances resulting in such expenses, judgments, fines or settlement amounts. The State’s contribution amount in any instance is capped to the same extent it would have been capped under Oregon law if the State had sole liability in the proceeding.

With respect to a Third Party Claim for which the Tribe is jointly liable with the State (or would be if joined in the Third Party Claim), the Tribe shall contribute to the amount of expenses (including attorneys' fees), judgments, fines and amounts paid in settlement actually and reasonably incurred and paid or payable by the State in such proportion as is appropriate to reflect the relative fault of the Tribe on the one hand and of the State on the other hand in connection with the events which resulted in such expenses, judgments, fines or settlement amounts, as well as any other relevant equitable considerations. The relative fault of the Tribe on the one hand and of the

State on the other hand shall be determined by reference to, among other things, the parties' relative intent, knowledge, access to information and opportunity to correct or prevent the circumstances resulting in such expenses, judgments, fines or settlement amounts. The Tribe’s contribution amount in any instance is capped to the same extent it would have been capped under Tribal law if it had sole liability in the proceeding.

30. Indemnification by Subcontractors. Tribe shall take all reasonable steps to cause its contractor(s) that are not units of local government as defined in

ORS 190.003, or Tribal government, if any, to indemnify, defend, save and hold harmless the State of Oregon and its officers, employees and agents

(“Indemnitee”) from and against any and all claims, actions, liabilities, damages, losses, or expenses (including attorneys’ fees) arising from a tort

(as now or hereafter defined in ORS 30.260) caused, or alleged to be caused, in whole or in part, by the negligent or willful acts or omissions of Tribe’s contractor or any of the officers, agents, employees or subcontractors of the

000000 / JFG Page 26 of 37 contractor (“Claims”). It is the specific intention of the parties that the

Indemnitee shall, in all instances, except for Claims arising solely from the negligent or willful acts or omissions of the Indemnitee, be indemnified by the contractor from and against any and all Claims.

31. Stop-Work Order. Agency may, at any time, by written notice to the Tribe, require the Tribe to stop all or any part of the work required by this

Agreement for a period of up to 90 days after the date of the notice, or for any further period to which the parties may agree through a duly executed amendment. Upon receipt of the notice, Tribe shall immediately comply with the Stop-Work Order terms and take all necessary steps to minimize the incurrence of costs allocable to the work affected by the stop work order notice. Within a period of 90 days after issuance of the written notice, or within any extension of that period to which the parties have agreed, Agency shall either:

a. Cancel or modify the stop work order by a supplementary written notice; or

b. Terminate the work as permitted by either the Default or the

Convenience provisions of Section 10, Termination.

If the Stop Work Order is canceled, Agency may, after receiving and evaluating a request by the Tribe, make an adjustment in the time required to complete this Agreement and the Agreement price by a duly executed amendment.

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EXHIBIT C

Subcontractor Insurance Requirements

Tribe shall require its first-tier Contractor(s) (Contractor) that are not units of local government as defined in ORS 190.003, if any, to:

i) obtain the insurance specified under TYPES AND AMOUNTS and meet the requirements under ADDITIONAL INSURED, CONTINUOUS CLAIMS MADE COVERAGE, NOTICE

OF CANCELLATION OR CHANGE, and CERTIFICATES OF INSURANCE before the

Contractor(s) perform under contracts between Tribe and the Contractors (the "Subcontracts"), and

ii) maintain the insurance in full force throughout the duration of the Subcontracts. The insurance must be provided by insurance companies or entities authorized to transact the business of insurance and issue coverage in the State of Oregon and that are acceptable to Agency.

Tribe shall not authorize Contractors to begin work under the Subcontracts until the insurance is in full force. Thereafter, Tribe shall monitor continued compliance with the insurance requirements on an annual or more frequent basis. Tribe shall incorporate appropriate provisions in the Subcontracts permitting it to enforce Contractor compliance with the insurance requirements and shall take all reasonable steps to enforce such compliance. Examples of "reasonable steps" include issuing stop work orders (or the equivalent) until the insurance is in full force, terminating the Subcontracts as permitted by the Subcontracts, or pursuing legal action to enforce the insurance requirements. In no event, shall Tribe permit a Contractor to work under a Subcontract when the Tribe is aware that the

Contractor is not in compliance with the insurance requirements. As used in this section, a "first-tier"

Contractor is a Contractor with which the Tribe directly enters into a contract. It does not include a subcontractor with which the Contractor enters into a contract.

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

INSURANCE TYPES AND AMOUNTS

WORKERS’ COMPENSATION AND EMPLOYERS’ LIABILITY:

All employers, including Contractor, that employ subject workers, as defined in ORS 656.027, shall comply with ORS 656.017 and shall 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 complies 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…