S-10000-00004195 Att A - Sample KT~1.pdf

RFA # S-10000-00004195 – Bulk Potable Water Delivery Service (Agency Internal #5470)

ATTACHMENT A – SAMPLE CONTRACT

Contract Number 000000

STATE OF OREGON

TRADE SERVICES CONTRACT

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 Contract is between the State of Oregon, acting by and through its Oregon Department of Human Services, hereinafter referred to as “ODHS” or “Agency,” and

Contractor Name d.b.a. Name (if Applicable)

Address Address

Attention: (required) Telephone: (required)

Fax: (optional) E-mail address: (required hereinafter referred to as “Contractor.”

Work to be performed under this Contract relates principally to ODHS’

Director’s Office and Shared Services, Office of Resilience and Emergency Management

3406 Cherry Ave. NE Keizer, OR 97303

Contract Administrator: Max Seiler or delegate Telephone: (503) 890-2388

E-mail address: max.seiler@dhsoha.state.or.us mailto:dhs-oha.publicationrequest@state.or.us mailto:dhs-oha.publicationrequest@state.or.us mailto:max.seiler@dhsoha.state.or.us

000000-0/be Page 2 of 23 ODHS TSK (reviewed by DOJ 8/30/2018) Updated: 3/1/2021

1. Effective Date and Duration. This Contract, when fully executed by every party, shall become effective on the date this Contract has been approved by the Department of Justice or on [TBD Upon Award], whichever date is later, regardless of the date of execution by every party. Unless extended or terminated earlier in accordance with its terms, this Contract shall expire on [TBD Upon Award]. Contract termination shall not extinguish or prejudice Agency’s right to enforce this Contract with respect to any default by Contractor that has not been cured.

2. Contract Documents.

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

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

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

(3) Exhibit A, Part 3: Special Provisions

(4) Exhibit B: Standard Terms and Conditions

(5) Exhibit C: Insurance Requirements There are no other contract documents unless specifically referenced and incorporated in this Contract.

b. This Contract and the documents listed in Section 2., “Contract Documents”, Subsection a. above, shall be in the following descending order of precedence:

this Contract less all exhibits, Exhibits B, A, and C.

3. Consideration.

a. The maximum, not-to-exceed compensation payable to Contractor under this

Contract, which includes any allowable expenses, is [$ TBD Upon Award].

ODHS will not pay Contractor any amount in excess of the not-to-exceed compensation of this Contract for completing the Work, and will not pay for Work performed before the date this Contract becomes effective or after the termination or expiration of this Contract. If the maximum compensation is increased by amendment of this Contract, the amendment must be fully effective before Contractor performs Work subject to the amendment.

b. Payments to Contractor shall be subject to ORS 293.462, and shall be made in accordance with the payment schedule and requirements in Exhibit A, Part 2., “Payment and Financial Reporting.”

c. ODHS will only pay for completed Work under this Contract. For purposes of this Contract, “Work” means the tasks or services and deliverables accepted by ODHS as described in Exhibit A, Part 1, “Statement of Work.”

4. Contractor or Subrecipient Determination. In accordance with the State Controller’s Oregon Accounting Manual, policy 30.40.00.104, ODHS’ determination is that:

Contractor is a subrecipient Contractor is a contractor Not applicable Catalog of Federal Domestic Assistance (CFDA) #(s) of federal funds to be paid through this Contract: N/A

5. Contractor Data and Certification.

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a. Contractor Information. This information is requested pursuant to ORS

305.385 and OAR 125-246-0330(1).

PLEASE PRINT OR TYPE THE FOLLOWING INFORMATION

Contractor Name (exactly as filed with the IRS):

Street address:

City, state, zip code:

Email address:

Telephone: ( ) Fax: ( )

Is Contractor a nonresident alien, as defined in 26 U.S.C. § 7701(b)(1)?

(Check one box): YES NO Business Designation: (Check one box):

Professional Corporation Nonprofit Corporation Limited Partnership Limited Liability Company Limited Liability Partnership Sole Proprietorship Corporation Partnership Other

Contractor Proof of Insurance. Contractor shall provide the following information upon submission of the signed Contract. All insurance listed herein and required by Exhibit C must be in effect prior to Contract execution.

Commercial General Liability Insurance Company: ____________________________________ Policy #: ______________________________________ Expiration Date: ________________ Automobile Liability Insurance Company: ___________________________________________ Policy #: ______________________________________ Expiration Date: ________________ Professional Liability Insurance Company: ___________________________________________ Policy #: ______________________________________ Expiration Date: ________________ Workers’ Compensation: Does Contractor have any subject workers, as defined in ORS 656.027? (Check one box): YES NO If YES, provide the following information:

Workers’ Compensation Insurance Company: ________________________________________ Policy #: ______________________________________ Expiration Date: ________________

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

(1) Contractor is in compliance with all insurance requirements in Exhibit C of this Contract, and notwithstanding any provision to the contrary, Contractor shall deliver to the ODHS Contract Administrator (see page 1 of this Contract) the required Certificate(s) of Insurance within 30 days of execution of this Contract. By certifying compliance with all insurance as required by this Contract, Contractor acknowledges it may be found in

000000-0/be Page 4 of 23 breach of the Contract for failure to obtain required insurance. Contractor may also be in breach of the Contract for failure to provide Certificate(s) of Insurance as required and to maintain required coverage for the duration of the Contract;

(2) Contractor acknowledges that the Oregon False Claims Act, ORS 180.750 to 180.785, applies to any “claim” (as defined by ORS 180.750) that is made by (or caused by) the Contractor and that pertains to this Contract or to the project for which the Contract work is being performed. Contractor certifies that no claim described in the previous sentence is or will be a “false claim” (as defined by ORS 180.750) or an act prohibited by ORS

180.755. Contractor further acknowledges that in addition to the remedies under this Contract, if it makes (or causes to be made) a false claim or performs (or causes to be performed) an act prohibited under the Oregon False Claims Act, the Oregon Attorney General may enforce the liabilities and penalties provided by the Oregon False Claims Act against the Contractor;

(3) The undersigned is authorized to act on behalf of Contractor and represents and warrants that Contractor has complied with the tax laws of the State of Oregon and the applicable tax laws of any political subdivision of Oregon. Contractor shall, throughout the duration of this Contract and any extensions, comply with all tax laws of this state and all applicable tax laws of any political subdivision of Oregon. For the purposes of this Section, “tax laws” includes: (i) All tax laws of Oregon, including but not limited to ORS 305.620 and ORS chapters 316, 317, and 318; (ii) Any tax provisions imposed by a political subdivision of Oregon that applied to Contractor, to Contractor’s property, operations, receipts, or income, or to Contractor’s performance of or compensation for any work performed by Contractor; (iii) Any tax provisions imposed by a political subdivision of Oregon that applied to Contractor, or to goods, services, or property, whether tangible or intangible, provided by Contractor; and (iv) Any rules, regulations, charter provisions, or ordinances that implemented or enforced any of the foregoing tax laws or provisions.

Contractor acknowledges that the Oregon Department of Administrative Services will report this Contract to the Oregon Department of Revenue (DOR). The DOR may take any and all actions permitted by law relative to the collection of taxes due to the State of Oregon or a political subdivision, including: (i) garnishing the Contractor’s compensation under this Contract; or (ii) exercising a right of setoff against Contractor’s compensation under this Contract for any amounts that may be due and unpaid to the State of Oregon or its political subdivisions for which the DOR collects debts;

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

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(5) To the best of the undersigned’s knowledge, Contractor has not discriminated against and will not discriminate against minority, women or emerging small business enterprises certified under ORS 200.055 in obtaining any required subcontracts;

(6) Contractor and Contractor’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;

(7) Contractor 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” currently found at:

https://www.sam.gov/SAM;

(8) Contractor is not subject to backup withholding because:

(a) Contractor is exempt from backup withholding;

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

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

(9) Contractor’s Federal Employer Identification Number (FEIN) or Social Security Number (SSN) provided is true and accurate. If this information changes, Contractor shall provide ODHS with the new FEIN or SSN within 10 days.

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/SAM

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CONTRACTOR, BY EXECUTION OF THIS CONTRACT, HEREBY

ACKNOWLEDGES THAT CONTRACTOR HAS READ THIS CONTRACT,

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

CONDITIONS.

CONTRACTOR: YOU WILL NOT BE PAID FOR SERVICES RENDERED PRIOR TO

NECESSARY STATE APPROVALS.

6. Signatures. This Contract 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 the Contract and any amendments so executed shall constitute an original.

Contractor Name By:

Authorized Signature Printed Name

Title Date

State of Oregon, acting by and through its Oregon Department of Human Services By:

Authorized Signature Printed Name

Title Date

Approved by the Department of Administrative Services:

Authorized Signature Title Date

Approved for Legal Sufficiency:

Department of Justice Date

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EXHIBIT A

Part 1

Statement of Work

1. Purpose:

To establish a contract for on-call bulk potable water delivery service to various locations affected by the severe drought conditions throughout the State of Oregon ODHS does not guarantee to Contractor that a minimum or maximum amount of bulk potable water delivery service will be ordered by ODHS under this Contract. Bulk potable water delivery service ordered by ODHS and performed by the Contractor under this Contract shall be strictly on an as needed basis upon request by ODHS to Contractor.

2. Tasks and Deliverables:

a. Contractor, upon request by ODHS, shall transport and deliver bulk volumes of potable water to designated water storage tanks located at various locations in Oregon as designated by ODHS.

b. Contractor shall ensure Contractor’s tanker truck vehicle(s) to be used for the transportation and delivery of potable water remain operable and in good working condition for the duration of this Contract. Contractor must notify ODHS via email within 24 hours if any events or circumstances arise that may delay the Contactor in transporting and delivering potable water to the designated locations.

c. Contractor shall only load its tanker truck vehicle(s) with potable water from ODHS approved water sources.

d. Contractor shall ensure the safety chain of potable water tanking through routine interior and exterior cleaning and disinfection of Contractor’s tanker truck reservoir(s), fittings(s), and pipeline(s). Contractor’s tanker truck vehicles must be free of contamination and fit to transport potable water at all times during the loading, transporting and delivery of water to the designated locations.

e. Contractor’s tanker truck vehicle(s) must be equipped with a water pump and other required equipment that may be necessary for the loading and offloading of potable water.

f. Contractor shall invoice ODHS at the hourly rate specified in Exhibit A, Part 2, “Payment and Financial Reporting” for bulk potable water delivery services.

g. ODHS, in coordination with Local Government representatives throughout Oregon, will request Contractor to provide bulk potable water delivery service via email. ODHS’ request to Contractor will contain the location where potable water is to be loaded into Contractor’s tanker truck vehicle, location(s) address where potable water is to be delivered, the number of gallons of potable water to be offloaded at each location, and the date(s) potable water delivery service needs to occur at each location.

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h. ODHS will pay Contractor for completed bulk potable water delivery service at the hourly rate as specified in Exhibit A, Part 2, “Payment and Financial Reporting”.

3. Specification or Performance Standards: Contractor shall routinely sanitize Contractor’s bulk potable water delivery equipment in accordance with all applicable statues, rules, and local guidelines related to the transportation and delivery of potable water.

--Remainder of Page Intentionally Left Blank--

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EXHIBIT A

Part 2

Payment and Financial Reporting

1. Payment Provisions.

a. As consideration for the services provided by Contractor during the period specified in Section 1. “Effective Date and Duration.”, of this Contract, ODHS will pay to Contractor, up to the maximum not-to-exceed amount as specified in Section 3. “Consideration.”, of this Contract, to be paid as follows:

(1) Hourly Rate for Potable Water Delivery: [TBD Upon Award)

b. Contractor Invoice.

(1) Contractor shall submit invoices for completed bulk potable water delivery service via email to the ODHS Contract Administrator listed on page 1 of this Contract, or to any other email address as ODHS may indicate in writing to Contractor. Contractor shall submit up to one invoice per [TBD Upon Award] to the ODHS Contract Administrator, or at a specified timeframe mutually agreed upon in writing between ODHS and the Contractor.

(2) Contractor’s invoices must include this Contract number, dates potable water delivery services were performed, addresses where potable water was delivered, hourly rate, total hours for delivery service being invoiced, and total invoice amount.

(3) Contractor's claims to ODHS for overdue payments on invoices are subject to ORS 293.462.

2. Travel and Other Expenses. OHDS will not reimburse contractor for any travel or additional expenses under this Contractor.

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EXHIBIT A

Part 3

Special Provisions

1. Confidentiality of Information.

a. Client Information:

(1) All information as to personal facts and circumstances obtained by the

Contractor 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 Contract. Nothing prohibits the disclosure of information in summaries, statistical, or other forms which does not identify particular individuals.

(2) The use or disclosure of Client Information shall be limited to persons directly connected with the administration of this Contract. Confidentiality policies shall be applied to all requests from outside sources.

2. Amendments.

a. Subject to Section 2.c. below, ODHS reserves the right to amend or extend this

Contract under the following general circumstances:

(1) ODHS may extend the Contract for additional periods of time up to a total

Contract period of 5 years, and for additional money associated with the extended period(s) of time. The determination for any extension for time may be based on ODHS’ satisfaction with performance of the work or services provided by the Contractor under this Contract.

(2) ODHS may periodically amend any payment rates throughout the life of the Contract proportionate to increases in Portland Metropolitan Consumer Price Index; and to provide Cost Of Living Adjustments (COLA) if ODHS so chooses. Any negotiation of increases in rates to implement a COLA will be as directed by the Oregon State Legislature. In addition, ODHS may periodically amend any payment rates throughout the life of the Contract to meet current market conditions.

b. ODHS further reserves the right to amend the Statement of Work based on the original scope of work of RFA # S-10000-00004195 for the following:

(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 Contract or previous amendments to the Contract;

(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

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c. Upon identification, by any party to this Contract, of any circumstance which may require an amendment to this Contract, 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 Contract before the modified or additional provisions are binding on either party. All amendments must comply with Exhibit B, “Standard Terms and Conditions”, Section 24. “Amendments;

Waiver; Consent.” of this Contract.

3. Background Checks. Reserved.

4. Nondiscrimination.

a. The Contractor must provide services to ODHS clients without regard to race, religion, national origin, sex, age, marital status, sexual orientation or disability (as defined under the Americans with Disabilities Act). Contracted services must reasonably accommodate the cultural, language, and other special needs of clients.

b. Contractor certifies that Contractor 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. Contractor agrees, as a material term of this Contract, to maintain such policy and practice in force during the entire Contract term.

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

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

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EXHIBIT B

Standard Terms and Conditions

1. Governing Law, Consent to Jurisdiction. This Contract shall be governed by and construed in accordance with the laws of the State of Oregon without regard to principles of conflicts of law. Any claim, action, suit or proceeding (collectively, “Claim”) between ODHS or any other agency or department of the State of Oregon, or both, and Contractor that arises from or relates to this Contract shall be brought and conducted solely and exclusively within the Circuit Court of Marion County for the State of Oregon; provided, however, if a Claim must be brought in a federal forum, then it shall be brought and conducted solely and exclusively within the United States District Court for the District of Oregon. In no event shall this Section be construed as a waiver by the State of Oregon of the jurisdiction of any court or of any form of defense to or immunity from any Claim, whether sovereign immunity, governmental immunity, immunity based on the eleventh amendment to the Constitution of the United States or otherwise. 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. This Section shall survive expiration or termination of this Contract.

2. Compliance with Law. Contractor shall comply with all federal, state and local laws, regulations, executive orders and ordinances applicable to Contractor and the Contract.

ODHS’ performance under the Contract is conditioned upon Contractor's compliance with the obligations of contractors under ORS 279B.220, 279B.230 and 279B.235, which are incorporated by reference herein. This Section shall survive expiration or termination of this Contract.

3. Independent Contractor.

a. Contractor is not an officer, employee, or agent of the State of Oregon as those terms are used in ORS 30.265 or otherwise.

b. If Contractor is currently performing work for the State of Oregon or the federal government, Contractor by signature to this Contract, represents and warrants that Contractor's Work to be performed under this Contract creates no potential or actual conflict of interest as defined by ORS Chapter 244 and that no statutes, rules or regulations of the State of Oregon or federal agency for which Contractor currently performs work would prohibit Contractor's Work under this Contract. If compensation under this Contract is to be charged against federal funds, Contractor certifies that it is not currently employed by the federal government.

c. Contractor is responsible for all federal and state taxes applicable to compensation paid to Contractor under this Contract and, unless Contractor is subject to backup withholding, ODHS will not withhold from such compensation any amounts 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 paid to Contractor under this Contract, except as a self-employed individual.

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d. Contractor shall perform all Work as an Independent Contractor, as defined in ORS 670.600. ODHS reserves the right (i) to determine and modify the delivery schedule for the Work, and (ii) to evaluate the quality of the Work Product, however, ODHS may not and will not control the means or manner of Contractor's performance. Contractor is responsible for determining the appropriate means and manner of performing the Work.

4. Representations and Warranties.

a. Contractor's Representations and Warranties. Contractor represents and warrants to ODHS that:

(1) Contractor has the power and authority to enter into and perform this

Contract;

(2) The obligations set forth in this Contract, when executed and delivered, shall be valid and binding obligations of the Contractor enforceable in accordance with its terms;

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

(4) Contractor shall, at all times during the term of this Contract, be qualified, professionally competent, and duly licensed to perform the Work; and

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

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

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

6. Funds Available and Authorized; Payments.

a. Contractor shall not be compensated for Work performed under this Contract by any other agency or department of the State of Oregon or the federal government.

ODHS certifies that it has sufficient funds currently authorized for expenditure to finance the costs of this Contract within ODHS' current biennial appropriation or limitation. Contractor understands and agrees that ODHS’ payment for Work performed is contingent on ODHS receiving appropriations, limitations, allotments or other expenditure authority sufficient to allow ODHS, in the exercise of its reasonable administrative discretion, to continue to make payments under this Contract.

b. Payment Method. Payments under this Contract will be made by Electronic Funds Transfer (EFT). Upon request, Contractor shall provide its taxpayer identification number (TIN) and other necessary banking information to receive EFT payment. Contractor shall maintain at its own expense a single financial

000000-0/be Page 14 of 23 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 Contract. Contractor shall provide this designation and information on a form provided by ODHS. In the event that EFT information changes or the Contractor elects to designate a different financial institution for the receipt of any payment made using EFT procedures, the Contractor shall provide the changed information or designation to ODHS on an ODHS-approved form. ODHS is not required to make any payment under this Contract until receipt of the correct EFT designation and payment information from the Contractor.

7. Recovery of Overpayments. IF BILLINGS UNDER THIS CONTRACT, OR UNDER

ANY OTHER CONTRACT BETWEEN CONTRACTOR AND ODHS, RESULT IN

PAYMENTS TO CONTRACTOR TO WHICH CONTRACTOR IS NOT ENTITLED,

ODHS, AFTER GIVING WRITTEN NOTIFICATION TO CONTRACTOR, MAY

WITHHOLD FROM PAYMENTS DUE TO CONTRACTOR SUCH AMOUNTS,

OVER SUCH PERIODS OF TIME, AS ARE NECESSARY TO RECOVER THE

AMOUNT OF THE OVERPAYMENT, UNLESS CONTRACTOR PROVIDES A

WRITTEN OBJECTION WITHIN 14 CALENDAR DAYS FROM THE DATE OF THE

NOTICE. ABSENT TIMELY WRITTEN OBJECTION, CONTRACTOR HEREBY

REASSIGNS TO ODHS ANY RIGHT CONTRACTOR MAY HAVE TO RECEIVE

SUCH PAYMENTS. IF CONTRACTOR PROVIDES A TIMELY WRITTEN

OBJECTION TO ODHS’ WITHHOLDING OF SUCH PAYMENTS, THE PARTIES

AGREE TO CONFER IN GOOD FAITH REGARDING THE NATURE AND

AMOUNT OF THE OVERPAYMENT IN DISPUTE AND THE MANNER IN WHICH

THE OVERPAYMENT IS TO BE REPAID. ODHS RESERVES ITS RIGHT TO

PURSUE ANY OR ALL OF THE REMEDIES AVAILABLE TO IT UNDER THIS

CONTRACT AND AT LAW OR IN EQUITY INCLUDING ODHS’ RIGHT TO

SETOFF.

8. Ownership of Work Product. Reserved.

9. Indemnity.

a. CONTRACTOR SHALL DEFEND (SUBJECT TO ORS CHAPTER 180), SAVE, HOLD HARMLESS, AND INDEMNIFY THE STATE OF OREGON

AND ODHS AND THEIR OFFICERS, EMPLOYEES AND AGENTS FROM

AND AGAINST ALL CLAIMS, SUITS, ACTIONS, LOSSES, DAMAGES,

LIABILITIES, COSTS AND EXPENSES OF ANY NATURE WHATSOEVER,

INCLUDING ATTORNEYS FEES, RESULTING FROM, ARISING OUT OF,

OR RELATING TO THE ACTIVITIES OF CONTRACTOR OR ITS

OFFICERS, EMPLOYEES, SUBCONTRACTORS, OR AGENTS UNDER

THIS CONTRACT. HOWEVER, THE CONTRACTOR SHALL NOT BE

REQUIRED TO INDEMNIFY THE STATE FOR ANY SUCH LIABILITY

ARISING OUT OF THE WRONGFUL ACTS OF THE STATE, ITS

OFFICERS, EMPLOYEES, OR AGENTS UNDER THIS CONTRACT.

b. INDEMNITY FOR INFRINGEMENT CLAIMS. WITHOUT LIMITING THE GENERALITY OF SECTION 9.a. ABOVE, CONTRACTOR EXPRESSLY

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AGREES TO DEFEND, INDEMNIFY, AND HOLD ODHS, THE STATE OF

OREGON AND THEIR AGENCIES, SUBDIVISIONS, OFFICERS,

DIRECTORS, AGENTS, AND EMPLOYEES HARMLESS FROM ANY AND

ALL CLAIMS, SUITS, ACTIONS, LOSSES, LIABILITIES, COSTS,

EXPENSES, INCLUDING ATTORNEYS FEES, AND DAMAGES ARISING

OUT OF OR RELATED TO ANY CLAIMS THAT THE WORK, THE WORK

PRODUCT OR ANY OTHER TANGIBLE OR INTANGIBLE ITEMS

DELIVERED TO ODHS BY CONTRACTOR THAT MAY BE THE SUBJECT

OF PROTECTION UNDER ANY STATE OR FEDERAL INTELLECTUAL

PROPERTY LAW OR DOCTRINE, OR ODHS’ USE THEREOF, INFRINGES

ANY PATENT, COPYRIGHT, TRADE SECRET, TRADEMARK, TRADE

DRESS, MASK WORK, UTILITY DESIGN, OR OTHER PROPRIETARY

RIGHT OF ANY THIRD PARTY; PROVIDED, THAT THE STATE OF

OREGON SHALL PROVIDE CONTRACTOR WITH PROMPT WRITTEN

NOTICE OF ANY INFRINGEMENT CLAIM.

THIS SECTION SHALL SURVIVE EXPIRATION OR TERMINATION OF THIS

CONTRACT.

10. Default; Remedies; Termination.

a. Default by Contractor. Contractor shall be in default under this Contract if:

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

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

or

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

(4) Contractor failed to comply with the tax laws of this state or a political subdivision of this state before the Contractor executed this Contract or fails to comply with the tax laws of this state or a political subdivision of this state during the term of this Contract.

b. ODHS’ Remedies for Contractor’s Default. In the event Contractor is in default under Section 10.a. above, ODHS may, at its option, pursue any or all of the remedies available to it under this Contract and at law or in equity, including, but not limited to:

(1) termination of this Contract under Section 10.e.(2) below;

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(2) withholding all monies due for Work and Work Products that Contractor has failed to deliver within any scheduled completion dates or has performed inadequately or defectively;

(3) initiation of an action or proceeding for damages, specific performance, or declaratory or injunctive relief; or

(4) exercise of its right of recovery of overpayments under Section 7., “Recovery of Overpayment”, of this Exhibit B.

These remedies are cumulative to the extent the remedies are not inconsistent, and ODHS may pursue any remedy or remedies singly, collectively, successively or in any order whatsoever. If a court determines that Contractor was not in default under Section 10.a. above, then Contractor shall be entitled to the same remedies as if this Contract was terminated pursuant to Section 10.e.(1) below.

c. Default by ODHS. ODHS shall be in default under this Contract if ODHS commits any material breach or default of any covenant, warranty, or obligation under this Contract, and such breach or default is not cured within 30 calendar days after Contractor's notice or such longer period as Contractor may specify in such notice.

d. Contractor’s Remedies for ODHS’ Default. In the event ODHS terminates the Contract under Section 10.e.(1) below, or in the event ODHS is in default under Section 10.c. above, and whether or not Contractor elects to exercise its right to terminate the Contract under Section 10.e.(3) below, Contractor's sole monetary remedy shall be: (i) with respect to Work compensable at a stated rate, a claim for unpaid invoices, time worked within any limits set forth in this Contract but not yet invoiced, authorized expenses incurred and interest within the limits permitted under ORS 293.462, and (ii) with respect to deliverable-based Work, a claim for the sum designated for completing the deliverable multiplied by the percentage of Work completed and accepted by ODHS, less previous amounts paid and any claim(s) that ODHS has against Contractor. In no event shall ODHS be liable to Contractor for any expenses related to termination of this Contract or for anticipated profits. If previous amounts paid to Contractor exceed the amount due to Contractor under this Section 10.d., Contractor shall immediately pay any excess to ODHS upon written demand. If Contractor does not immediately pay the excess, ODHS may recover the overpayments in accordance with Section 7., “Recovery of Overpayments”, and may pursue any other remedy that may be available to it.

e. Termination.

(1) ODHS’ Right to Terminate at its Discretion. At its sole discretion, ODHS may terminate this Contract:

(a) For its convenience upon 30 days’ prior written notice by ODHS to

Contractor;

(b) Immediately upon written notice if ODHS fails to receive funding, appropriations, limitations, allotments or other expenditure authority at levels sufficient to pay for the Work or Work Products;

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(c) Immediately upon written notice if federal or state laws, regulations, or guidelines are modified or interpreted in such a way that ODHS’ purchase of the Work or Work Products under this Contract is prohibited, or ODHS is prohibited from paying for such Work or Work Products from the planned funding source; or

(d) Immediately upon written notice to Contractor if there is a threat to the health, safety, or welfare of any ODHS client or recipient of services under this Contract, including any Medicaid Eligible Individual, under its care.

(2) ODHS’ Right to Terminate for Cause. In addition to any other rights and remedies ODHS may have under this Contract, ODHS may terminate this Contract immediately upon written notice to Contractor, or at such later date as ODHS may establish in such notice, if Contractor is in default under Section 10.a. above.

(3) Contractor's Right to Terminate for Cause. Contractor may terminate this Contract upon 30 days written notice to ODHS, or at such later date as Contractor may establish in such notice, if ODHS is in default under Section 10.c. above, and ODHS fails to cure such default within 30 calendar days after ODHS receives Contractor's notice or such longer period as Contractor may specify in such notice.

(4) Mutual Termination. The Contract may be terminated immediately upon mutual written consent of the parties or at such other time as the parties may agree in the written consent.

(5) Return of Property. Upon termination of this Contract for any reason whatsoever, Contractor shall immediately deliver to ODHS all of ODHS’ property that is in the possession or under the control of Contractor at that time. This Section 10.e.(5) survives the expiration or termination of this Contract.

(6) Effect of Termination: Upon receiving a notice of termination of this Contract, or upon issuing a notice of termination to ODHS, Contractor shall immediately cease all activities under this Contract, unless in a notice issued by ODHS, ODHS expressly directs otherwise.

11. Stop-Work Order. ODHS may, at any time, by written notice to the Contractor, require the Contractor to stop all, or any part of the work required by this Contract 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, Contractor 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, ODHS 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., “Default; Remedies; Termination.”

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

12. Limitation of Liabilities. EXCEPT FOR LIABILITY ARISING UNDER OR

RELATED TO SECTION 9., “INDEMNITY”, NEITHER PARTY SHALL BE LIABLE

FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR

RELATED TO THIS CONTRACT.

13. Insurance. Contractor shall maintain insurance as set forth in Exhibit C, attached hereto.

14. Records Maintenance, Access. Contractor shall maintain all financial records relating to this Contract in accordance with generally accepted accounting principles. In addition, Contractor shall maintain any other records, books, documents, papers, plans, records of shipments and payments, and writings of Contractor, whether in paper, electronic or other form, that are pertinent to this Contract, in such a manner as to clearly document Contractor's performance. All financial records, other records, books, documents, papers, plans, records of shipments and payments, and writings of Contractor, whether in paper, electronic or other form, that are pertinent to this Contract, are collectively referred to as “Records.” Contractor acknowledges and agrees that ODHS, the 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 to make excerpts and transcripts. Contractor shall retain and keep accessible all Records for the longest of:

a. Six years following final payment and termination of this Contract;

b. The period as may be required by applicable law, including the records retention schedules set forth in OAR Chapter 166; or

c. Until the conclusion of any audit, controversy or litigation arising out of or related to this Contract.

15. Information Privacy/Security/Access. If the Work performed under this Contract requires Contractor or, when allowed, its subcontractor(s), to have access to or use of any ODHS computer system or other ODHS Information Asset for which ODHS imposes security requirements, and ODHS grants Contractor or its subcontractor(s) access to such ODHS Information Assets or Network and Information Systems, Contractor shall comply and require all subcontractor(s) to which such access has been granted to comply with OAR 407-014-0300 through 407-014-0320, as such rules may be revised from time to time. 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. No party is responsible for delay or default caused by an event beyond its reasonable control. ODHS may terminate this Contract, without liability to Contractor, upon written notice after reasonably determining the delay or default reasonably prevents performance of this Contract.

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

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18. Subcontracts; Assignment; Successors. Contractor shall not assign, transfer, or subcontract rights or responsibilities under this Contract, in whole or in part, without the prior written approval of ODHS. This Contract’s provisions are binding upon and inure to the benefit of the parties to this Contract and their respective successors and assigns.

19. No Third Party Beneficiaries. ODHS and Contractor are the only parties to this Contract and are the only parties entitled to enforce its terms. Nothing in this Contract 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 name herein and expressly described as intended beneficiaries of the terms of this Contract. This Section shall survive expiration or termination of this Contract.

20. 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 shall not be affected, and the rights and obligations of the parties shall be construed and enforced as if the Contract did not contain the particular term or provision held to be invalid. This Section shall survive expiration or termination of this Contract.

21. Notice. Except as otherwise expressly provided in this Contract, any communications between the parties hereto or notices to be given hereunder shall be given in writing by personal delivery, fax, or mailing the same, postage prepaid to Contractor or ODHS at the address or number set forth in this Contract, 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 fax 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 foregoing, to be effective against the other party, any notice transmitted by fax must be confirmed by telephone notice to the other party.

Any communication or notice given by personal delivery shall be deemed effective when actually delivered to the addressee.

ODHS: Office of Contracts & Procurement

635 Capitol Street NE, Suite 350 Salem, OR 97301 Telephone: 503-945-5818 Fax: 503-378-4324

This Section shall survive expiration or termination of this Contract.

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

23. Merger Clause. This Contract constitutes the entire agreement between the parties on the subject matter hereof. There are no understandings, agreements, or representations, oral or written, regarding this Contract not specified herein.

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24. Amendments; Waiver; Consent. ODHS may amend this Contract to the extent provided herein, the solicitation document, if any from which this Contract arose, and to the extent permitted by applicable statutes and administrative rules. No amendment, waiver, or other consent under this Contract shall bind either party unless it is in writing and signed by both parties and when required, approved by the Department of Justice.

Such amendment, waiver, or consent shall be effective only in the specific instance and for the specific purpose given. The failure of either party to enforce any provision of this Contract shall not constitute a waiver by that party of that or any other provision. This Section shall survive the expiration or termination of this Contract.

25. Contractor’s Failure to Perform. Contractor’s failure to perform the statement of work specified in this Contract, or to meet the performance standards established in this Contract, may result in consequences that include, but are not limited to:

a. Reducing or withholding payment under this Contract;

b. Requiring Contractor to perform at Contractor’s expense additional work necessary to perform the statement of work or meet performance standards; or

c. Declaring a default of this Contract and pursuing any available remedies for default, including termination of the Contract as permitted in Section 10., “Default; Remedies; Termination”, of this Contract.

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EXHIBIT C

Insurance Requirements

INSURANCE REQUIREMENTS: Contractor shall obtain at Contractor’s expense the insurance specified in this Exhibit C prior to performing under this Contract and shall maintain it 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 Agency. 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.

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 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 complies with these requirements.

COMMERCIAL GENERAL LIABILITY: Required Commercial General Liability Insurance covering bodily injury and property damage in a form and with coverage that are satisfactory to the State. This insurance shall 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 shall be written on an occurrence basis in an amount of not less than $1,000,000.00 per occurrence. Annual aggregate limit shall not be less than $2,000,000.00.

AUTOMOBILE LIABILITY INSURANCE: Required Not required 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 $1,000,000.00 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 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

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$1,000,000.00 per claim. Annual aggregate limit shall not be less than $2,000,000.00. If coverage is 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.

NETWORK SECURITY AND PRIVACY LIABILITY: Required Not required POLLUTION LIABILITY: Required Not required EXCESS/UMBRELLA INSURANCE: A combination of primary and excess/umbrella insurance may be used to meet the required limits of insurance.

ADDITIONAL INSURED: All liability insurance, except for Workers’ Compensation, Professional…