S-10700-00007204 Att A_Sample Contract_with Exhibits_FINAL_2023.06.22.pdf

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(CONTRACTOR NAME)

STATE OF OREGON SERVICES CONTRACT

CONTRACT #: #PO-10700-########

CONTRACT AMOUNT: $

FUNDING: PCA-14410 / AOBJ-5209

PROJECT NUMBER: 110453

PROJECT NAME:

Uninterrupted Power Supply (“UPS”) System Maintenance Services

This Contract for Services (this “Contract”) is by and between the State of Oregon, acting by and through the Department of Administrative Services (“DAS” or “Agency”) and ________ (“Contractor”), collectively “the Parties”.

Contractor’s Contract Administrator for this Contract:

Contractor Company Name

Name Title Address City, State ZIP Phone:

Email:

Division Contract Administrator for this Contract:

DAS Enterprise Asset Management Division Administration – Contracts Services Laura Bindley, OPBC Procurement Contracts Specialist 1225 Ferry Street SE, U100 Salem, OR 97301 Phone: 503-378-5283 Email: Laura.Bindley@DAS.Oregon.gov

The Effective Date of this Contract is the later of (i) July 30, 2023, or (ii) the date this Contract has been fully executed by each party and approved as required by applicable law. Unless extended or terminated earlier in accordance with its terms, this Contract terminates on July 29, 2025. (See Section 3 – CONTRACT TERM, EXTENSIONS AND RENEWALS.)

Termination of this Contract will not extinguish or prejudice Agency’s right to enforce this Contract with respect to any default by Contractor that has not been cured.

1. CONTRACT DOCUMENTS. This Contract consists of the following documents, which are listed in descending order of precedence:

1.1. This Contract, less all exhibits

1.2. Exhibit A: Statement of Services

1.3. Exhibit B: Standard Contract Terms and Conditions for Services

1.4. Exhibit C: Insurance Requirements

1.5. Exhibit D: Schedule of Prices

1.6. Exhibit E: Contract Contact Information

1.7. Exhibit F: Equipment List

1.8. Exhibit G: Sample Equipment Maintenance Log

1.9. Exhibit H: Contractor’s Key Persons Contact Information

1.10. Exhibit I: Emergency Contact Information

1.11. Exhibit J: State Data Center UPS Maintenance Method of Procedure

The foregoing documents and Exhibits are attached hereto and made a part of this Contract by this reference.

mailto:Laura.Bindley@DAS.Oregon.gov

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2. DEFINITION OF TERMS

2.1. “Agency” means the State of Oregon, Department of Administrative Services (“DAS”).

2.2. “Contract” means the entire agreement between the Contractor and DAS.

2.3. “DAS EAM” means the State of Oregon, Department of Administrative Services, Enterprise Asset Management Division.

2.4. “OAR” means the Oregon Administrative Rules.

2.5. “ORS” means the Oregon Revised Statues.

2.6. “Services” means the services that Contractor is required to perform under this Contract.

2.7. “State” means the State of Oregon.

2.8. “UPS” means Uninterrupted Power Supply which is the critical power system described in this Contract.

2.9. “Written” or “Writing” means conventional paper documents, whether handwritten, manuscript or printed, contrast to spoken words. It also includes electronic transmissions (emails) and facsimile documents.

2.10. “Business Day” means Monday through Friday, 8:00 am to 5:00 pm Pacific Time, excluding State of Oregon holidays.

2.11. “Third Party Intellectual Property” means software or other intellectual property owned by parties other than Contractor or Agency.

3. CONTRACT TERM, EXTENSIONS AND RENEWALS. The initial term of this Contract shall be two (2) years, beginning July 30, 2023, and expiring on July 29, 2025 (“Initial Term”). This Contract may be extended for additional extension terms of one (1) or two (2) years (“Extension Terms”) by mutual agreement of the Parties. The maximum term of this Contract, including any and all “Extension Terms,” shall not exceed ten (10) years, expiring on July 29, 2033. DAS EAM shall notify Contractor in writing of DAS EAM’s desire to extend this Contract ("Renewal Notice") at least ninety (90) days prior to the expiration of the then-current term. If Contractor consents to the extension, Contractor shall sign and return the Renewal Notice to DAS EAM within the time specified therein. If Contractor does not consent, this Contract shall expire according to its terms, unless earlier terminated.

3.1. One (1) Month Extension Right. Agency has the right, in its sole discretion, to extend the term of this Contract for not more than one (1) calendar month beyond its maximum term. DAS will notify Contractor in writing that the Agency intends to add the one (1) month extension at least sixty (60) calendar days before the maximum term expires. Contractor shall not increase pricing or decrease Services during the one (1) month extension under this section.

4. SERVICES

4.1. Performance of Services. Contractor shall perform the services (the “Services”) and deliver to Agency the deliverables (“Deliverables”) set forth in Exhibit A – Statement of Services (the “Statement of Services”). The Statement of Services includes the delivery schedule for the Deliverables and Services. Contractor shall perform the Services in accordance with the terms and conditions of this Contract.

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4.2. Submission and Acceptance of Deliverables. When the Statement of Services requires Contractor to deliver Deliverables to Agency, then Contractor shall deliver Deliverables that comply with the requirements and acceptance criteria set forth in the Statement of Services. Contractor shall provide written notice to Agency upon delivery of completed Deliverable(s) to Agency. By no later than (i) fifteen (15) Business Days after receipt of such notice, or (ii) the date or period for review set forth in the Statement of Services, Agency will determine whether the Deliverables has the characteristics and otherwise meets the acceptance criteria set forth in the Statement of Services. If Agency determines that the Deliverables has the characteristics and meets acceptance criteria set forth in the Statement of Services in all material respects, Agency will notify Contractor in writing of Agency’s acceptance of the Deliverables.

4.3. Rejection of Deliverables; Corrections. If Agency determines that a Deliverable(s) does not have the characteristics or otherwise meets the acceptance criteria set forth in the Statement of Services in all material respects, Agency will notify Contractor in writing of Agency’s rejection of the Deliverables and describe in reasonable detail in such notice the Agency’s basis for rejection of the Deliverables. Upon receipt of notice of non-acceptance, Contractor shall, within a fifteen (15)-Business Day period, modify or improve the Deliverables at Contractor’s sole expense so that the Deliverables has the characteristics described in the Statement of Services and meets, in all material respects, the acceptance criteria, and notify the Agency in writing that it has completed such modifications or improvements and re-tender the Deliverables to Agency. Agency will thereafter review the modified or improved Deliverables within fifteen (15) Business Days of receipt of this Contractor's delivery of the Deliverables. Failure of the Deliverables to have the characteristics or meet in all material respects the acceptance criteria set forth in the Statement of Services after the second submission will constitute a default by Contractor.

In the event of such default, Agency may either (i) notify Contractor of such default and instruct Contractor to modify or improve the Deliverables as set forth in this Section, or (ii) notify Contractor of such default and pursue its remedies for default provided for by law or the terms of this Contract.

5. COMPENSATION

5.1. Not to Exceed Compensation. The total Contract amount payable as compensation to Contractor under this Contract, including any allowable expenses, shall not exceed $______. If the total Contract amount payable as compensation is increased by amendment of this Contract, the amendment must be fully effective before Contractor performs Services subject to the Amendment.

5.2. Payments. Payments, including interim payments, to Contractor are subject to ORS 293.462, will be made only for completed and accepted Deliverables and Services, and will be made in accordance with the payment schedule and requirements set forth in EXHIBIT A – STATEMENT OF SERVICES, Section 11 – METHOD OF INVOICING.

5.2.1. The prices in Exhibit D – SCHEDULE OF PRICES to this Contract are firm for the Initial Term of this Contract, although price decreases offered by Contractor will be implemented immediately. DAS may consider price increase requests by Contractor only once per twelve (12) month period of the Contract Term. All proposed price increase requests must be submitted to DAS in writing at least ninety (90) days prior to the time the price increase is desired to begin. Proposed price increases must be accompanied by documentation support such requests. DAS may accept or reject any proposed price increases if it is in the best interest of the State. If a price increase is accepted, it shall be effective on the date an executed amendment has been fully executed by each party and approved as required by applicable law.

5.3. Invoices. Contractor shall submit invoices to Agency as set forth in the Statement of Services or, if not set forth therein, to Agency’s “SUBMIT INVOICES TO” contact listed in Exhibit E – CONTRACT CONTACT INFORMATION.

Contractor may submit invoices in accordance with the payment schedule set forth in the Statement of Services or, if no payment schedule is set forth therein, then no more frequently than once per month for accepted Deliverables and Services. See EXHIBIT A – STATEMENT OF SERVICES, Section 11 – METHOD OF INVOICING for details.

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5.4. Expenses. Agency will not pay or reimburse any expenses incurred by Contractor during the completion of the Services except as authorized in the Statement Services or elsewhere in this Contract. Any such authorized travel expenses must comply with the Oregon Statewide Travel Policy available on the Internet at:

https://www.oregon.gov/das/financial/acctng/pages/travel.aspx

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

6. CONTRACTOR’S PERSONNEL

6.1. Key Persons. Contractor acknowledges and agrees that Agency selected Contractor, and is entering into this Contract, because of the special qualifications of Contractor's key persons identified in the Statement of Services (each a “Key Person” and, together, “Key Persons”). Neither Contractor nor a Key Person may delegate performance of the powers and responsibilities that a Key Person is required to provide under this Contract to another Contractor employee, subcontractor, or agent without first obtaining the written consent of Agency.

Further, Contractor may not re-assign or transfer a Key Person to other duties or positions such that the Key Person is no longer available to provide the Agency with the required expertise, experience, judgment, and personal attention, without first obtaining Agency's written consent to such re-assignment or transfer, which Agency will not unreasonably withhold or delay. Notwithstanding the foregoing, Contractor may replace a Key Person in the event the Key Person is no longer available due to circumstances beyond Contractor’s reasonable control, such as death, illness, or termination of employment with Contractor. In the event Contractor requests that Agency approve a reassignment or transfer of a Key Person, or if Contractor must replace a Key Person, Agency may interview, review the qualifications of, and approve or reject the proposed replacement for the Key Person. Any such replacement must have substantially equivalent or better qualifications than the Key Person being replaced. Any replacement personnel approved by Agency in writing (email acceptable) will thereafter be deemed a Key Person for purposes of this Contract, and the Statement of Services will be deemed amended to include such Key Person. (See Exhibit H – CONTRACTOR’S KEY PERSONS CONTACT INFORMATION.) Formal amendment of Exhibit H will occur at time of renewals for purposes of this Contract’s documentation.

6.2. Payment for Replacement Key Personnel. If Agency is paying Contractor on an hourly or other periodic basis, then Contractor will not charge Agency, and Agency will not pay, for a replacement Key Person while such replacement acquires the project knowledge and skills necessary to perform the Services. Such period of non-charge will be agreed upon by the Parties.

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

7. INDEPENDENT CONTRACTOR; RESPONSIBILITY FOR TAXES AND WITHHOLDING

7.1. Independent Contractor. Contractor shall perform all Services as an independent contractor. Agency reserves the right (i) to determine and modify the delivery schedule for the Services and (ii) to evaluate the quality of the Services; however, Agency may not and will not control the means or manner of Contractor's performance.

Contractor is responsible for determining the appropriate means and manner of performing the Services.

https://www.oregon.gov/das/financial/acctng/pages/travel.aspx

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

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

7.4. Taxes and Benefits. Contractor is responsible for all federal or state taxes applicable to compensation or payments paid to Contractor under this Contract and, unless required by applicable law, Agency will not withhold from such compensation or payments any amount to cover Contractor's federal or state tax obligations.

Contractor is not eligible for any social security, unemployment insurance or workers' compensation benefits from compensation or payments paid to Contractor under this Contract, except as a self-employed individual.

8. SUBCONTRACTS, SUCCESSORS, AND ASSIGNMENTS

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

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

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

9. REPRESENTATIONS AND WARRANTIES

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

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

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

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

9.1.4. Contractor shall perform the preventative maintenance, service, support, and repairs Services set forth in this Contract in accordance with the highest professional standards prevailing in Contractor’s profession and in compliance with the requirements of this Contract; and

9.1.5. Contractor (to the best of Contractor’s knowledge, after due inquiry), for a period of no fewer than six (6) calendar years preceding the Effective Date, has faithfully complied with:

9.1.5.1. All tax laws of this state, including but not limited to ORS 305.380(4), ORS 305.620 and ORS chapters 316, 317, and 318;

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

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

9.1.5.4. Any rules, regulations, charter provisions, or ordinances that implemented or enforced any of the foregoing tax laws or provisions.

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

9.2. Contractor’s Performance Warranties.

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

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

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

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

9.3. Warranties cumulative. The warranties set forth in Section 9 are in addition to, and not in lieu of, any other warranties set forth elsewhere in this Contract.

10. INDEMNIFICATION BY CONTRACTOR

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

10.2. Legal Counsel. If Contractor is required to defend the State of Oregon or Agency or their officers, employees, or agents under Section 10.1, then Contractor shall select legal counsel reasonably acceptable to the Oregon Attorney General to act in the name of, or represent the interests of, the State of Oregon, Agency or their officers, employees, and agents. Such legal counsel must accept appointment as a special assistant attorney general under ORS chapter 180 before such action or representation. Further, the State of Oregon, acting by and through its Department of Justice, may assume its own defense, including that of its officers, employees and agents, at any time when in the State of Oregon's sole discretion it determines that (i) proposed counsel is prohibited from the

#PO-10700-######## – UPS SYSTEM MAINTENANCE SERVICES – STATE DATA CENTER Page 7 of 38 particular representation contemplated; (ii) counsel is not adequately defending the interests of the State of Oregon or its officers, employees and agents; (iii) important governmental interests are at stake; or (iv) the best interests of the State of Oregon are served thereby. Contractor's obligation to pay for all costs and expenses includes those incurred by the State of Oregon in assuming its own defense or that of its officers, employees, and agents under (i) and (ii) above.

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

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

WITHOUT THE EXPRESS WRITTEN CONSENT OF AGENCY.

11. INSURANCE. Contractor shall maintain insurance as set forth in Exhibit C.

12. DEFAULT; REMEDIES; TERMINATION

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

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

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

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

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

12.2. Agency’s Remedies for Contractor’s Default. In the event Contractor is in default under Section 12.1., Agency may, at its option, pursue any or all the remedies available to it under this Contract and at law or in equity, including, but not limited to:

12.2.1. Termination of this Contract under Section 12.6.2 or

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

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

or

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

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

12.3. Remedies Cumulative. The remedies set forth in Section 12.2 are cumulative to the extent the remedies are not inconsistent, and Agency may pursue any remedy or remedies singly, collectively, successively or in any order whatsoever. If a court determines that Contractor was not in default under Sections 12.1 then Contractor will be entitled to the same remedies as if this Contract was terminated pursuant to Section 12.6.1

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

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

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

12.5. Contractor’s Remedies. In the event Agency terminates this Contract under Section 12.6.1 or is in default under Section 12.4 and whether or not Contractor elects to exercise its right to terminate this Contract under Section 12.6.3 Contractor’s sole monetary remedy will be (i) with respect to Services compensable at a stated rate, a claim for unpaid invoices, time worked within any limits set forth in this Contract but not yet invoiced and authorized expenses incurred and interest, subject to ORS 293.462, and (ii) with respect to Deliverables-based Services, a claim for the sum designated for completing the Deliverables multiplied by the percentage of Services completed and accepted by Agency, less previous amounts paid and any claim(s) that Agency has against Contractor.

In no event will Agency be liable to Contractor for any expenses related to termination of this Contract or for anticipated profits. If previous amounts paid to Contractor exceed the amount due to Contractor under this Section 12.5, Contractor shall pay immediately any excess to Agency upon written demand.

12.6. Termination.

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

12.6.1.1. Upon thirty (30) calendar days’ prior written notice by Agency to Contractor;

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

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

12.6.2. Agency’s Right to Terminate for Cause. In addition to any other rights and remedies Agency may have under this Contract, Agency may terminate this Contract immediately upon written notice by Agency to Contractor, or at such later date as Agency may establish in such notice, if Contractor is in default under Section 12.1.

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12.6.3. Contractor’s Right to Terminate for Cause. Contractor may terminate this Contract immediately upon written notice to Agency, or at such later date as Contractor may establish in such notice, if Agency is in default under Section 12.4.

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

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

12.8.1. Should this Contract expire or terminate, Contractor shall provide transition support (provide records, answer questions, transfer information, etc.) for up to twenty (20) business days following expiration or termination date and shall provide complete service documentation and records to any new Contractor as requested or directed by DAS.

13. COMPLIANCE WITH LAW

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

(vi) the Age Discrimination in Employment Act of 1967, as amended, and the Age Discrimination Act of 1975, as amended; (vii) the Vietnam Era Veterans’ Readjustment Assistance Act of 1974, as amended; (viii) Section 188 of the Workforce Investment Act (WIA) of 1998, as amended; (ix) ORS chapter 659, as amended; (x) all regulations and administrative rules established pursuant to the foregoing laws; and (xi) all other applicable requirements of federal and state civil rights and rehabilitation statutes, rules and regulations. These laws, regulations and executive orders are incorporated by reference herein to the extent that they are applicable to this Contract and required by law to be so incorporated. Agency’s performance under this Contract is conditioned upon Contractor's compliance with the provisions of ORS 279B.220, 279B.225, 279B.230, 279B.235 and 279B.270 which are incorporated by reference herein. Contractor shall, to the maximum extent economically feasible in the performance of this Contract, use recycled paper (as defined in ORS 279A.010(1)(gg)), recycled PETE products (as defined in ORS 279A.010(1)(hh)), and other recycled products (as “recycled product” is defined in ORS 279A.010(1)(ii)).

13.2. Compliance with Oregon Tax Laws.

13.2.1. Contractor shall, throughout the duration of this Contract, comply with all tax laws of this state and all applicable tax laws of any political subdivision of this state. For the purposes of this section, “tax laws” includes the tax laws described in Section 9.1.5.1 through 9.1.5.4.

13.2.2. Any violation of Section 13.2.1 constitutes a material breach of this Contract. Further, any violation of Contractor’s warranty in Section 9.1.5 of this Contract that Contractor has complied with the tax laws of

#PO-10700-######## – UPS SYSTEM MAINTENANCE SERVICES – STATE DATA CENTER Page 10 of 38 this state and the applicable tax laws of any political subdivision of this state also constitutes a material breach of this Contract. Any violation entitles Agency to terminate this Contract, to pursue and recover all damages that arise from the breach and the termination of this Contract, and to pursue any or all the remedies available under this Contract, at law, or in equity, including but not limited to:

13.2.2.1. Termination of this Contract, in whole or in part;

13.2.2.2. Exercise of the right of setoff, or garnishment if applicable, and withholding of amounts otherwise due and owing to Contractor without penalty; and

13.2.2.3. Initiation of an action or proceeding for damages, specific performance, declaratory or injunctive relief. Agency is entitled to recover all damages suffered as the result of Contractor's breach of this Contract, including but not limited to direct, indirect, incidental, and consequential damages, costs of cure, and costs incurred in securing replacement Services.

13.2.3. These remedies are cumulative to the extent the remedies are not inconsistent, and Agency may pursue any remedy or remedies singly, collectively, successively, or in any order whatsoever.

13.3. Compliance with Federal, State Law. Contractor shall comply with all applicable federal and State laws.

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

13.5. 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.

14. GOVERNING LAW; VENUE AND JURISDICTION

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

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

14.3. Third Party Intellectual Property. In the event the Services include Third Party Intellectual Property and unless otherwise agreed, Contractor shall secure on Agency’s behalf and in the name of Agency an irrevocable, non-exclusive, perpetual, royalty-free license to use, reproduce, prepare derivative works based upon, distribute copies of, perform and display the pre-existing elements of the Third Party Intellectual Property employed in the Services or Deliverables, and to authorize others to do the same on Agency’s behalf.

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15. MISCELLANEOUS PROVISIONS

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

15.2. Foreign Contractor. If Contractor is not domiciled in or registered to do business in the State of Oregon, Contractor shall promptly provide to the Oregon Department of Revenue and the Secretary of State Corporation Division all information required by those agencies relative to this Contract. Contractor shall demonstrate its legal capacity to perform the Services under this Contract in the State of Oregon prior to entering this Contract.

15.3. Force Majeure. Neither Agency nor Contractor may be held responsible for delay or default caused by an event beyond the reasonable control of Agency or Contractor, respectively. Contractor shall, however, make all reasonable efforts to remove or eliminate such a cause of delay or default and shall, upon the cessation of the cause, diligently pursue performance of its obligations under this Contract.

15.4. Survival. All rights and obligations cease upon termination or expiration of this Contract, except for the rights and obligations and declarations which expressly or by their nature survive termination of this Contract, including without limitation this Section 15.4, and provisions regarding Contract definitions, warranties and liabilities, independent Contractor status and taxes and withholding, maximum compensation, Contractor’s duties of confidentiality, ownership and license of intellectual property and Deliverables, confidentiality and non-disclosure, Contractor’s representations and warranties, control of defense and settlement, remedies, return of Agency property, dispute resolution, order of precedence, maintenance and access to records, notices, severability, successors and assigns, third party beneficiaries, waiver, headings, and integration.

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

15.6. Notice. Except as otherwise expressly provided in this Contract, any communications between the Parties hereto or notices to be given hereunder must be given in writing by email, personal delivery, or mailing the same, postage prepaid, to Contractor or Agency at the email address or postal address set forth in this Contract, or to such other addresses as either party may indicate pursuant to this Section 15.6. Any communication or notice so addressed and mailed is effective five (5) Business Days after mailing. Any communication or notice given by personal delivery is effective when delivered. Any notice given by email is effective when the sender receives confirmation of delivery, either by return email, or by demonstrating through other technological means that the email has been delivered to the intended email address.

15.7. Intended Beneficiaries. Agency and Contractor are the only Parties to this Contract and are the only Parties entitled to enforce the terms of this Contract. Nothing in this Contract gives, is intended to give, or may be construed to give or provide any benefit or right not held by or made generally available to the public, whether directly, indirectly, or otherwise, to third persons unless such third persons are individually identified by name herein and expressly described as intended beneficiaries of the terms of this Contract.

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15.8. Severability. The Parties agree that if any term or provision of this Contract is declared by a court of competent jurisdiction to be illegal or otherwise invalid, the validity of the remaining terms and provisions will not be affected, and the rights and obligations of the Parties will be construed and enforced as if this Contract did not contain the particular term or provision held to be invalid.

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

Such waiver, consent, modification, or change, if made, will be effective only in the specific instance and for the specific purpose given. The failure of Agency to enforce any provision of this Contract in one instance will not constitute a waiver by Agency of its right to enforce that or any other provision.

15.10. Amendments. Agency may amend this Contract to the extent permitted by applicable statutes and administrative rules. Amendments may include but not be limited to extension of time, modifying scope of work, increasing or decreasing pricing, and adding additional site locations as needed. No amendment to this Contract is effective unless it is in writing signed by the Parties and has been approved as required by applicable law.

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

Each copy of this Contract so executed constitutes an original.

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

15.13. Standard Terms and Conditions. Contractor shall adhere to the terms and conditions set forth in Exhibit B –

Standard Contract Terms and Conditions for Services.

15.14. Unacceptable Activities; Cleanup Removal. Contractor acknowledges that alcoholic beverages, illegal drugs, and illegal activities are not permitted on Facility premises. Contractor shall ensure that its officers, employees, and agents comply with these restrictions.

16. CERTIFICATIONS. The individual signing on behalf of Contractor hereby:

16.1. Certifies and swears under penalty of perjury to the best of the individual’s knowledge that: (a) Contractor is not subject to backup withholding because (i) Contractor is exempt from backup withholding, (ii) Contractor has not been notified by the IRS that Contractor is subject to backup withholding as a result of a failure to report all interest or dividends, or (iii) the IRS has notified Contractor that Contractor is no longer subject to backup withholding; (b) s/he is authorized to act on behalf of Contractor, s/he has authority and knowledge regarding Contractor’s payment of taxes, and to the best of her/his knowledge, that Contractor is not in violation of any Oregon tax laws and that for a period of no fewer than six (6) calendar years preceding the Effective Date of this Contract, Contractor faithfully has complied with: (i) all tax laws of this state, including but not limited to ORS 305.380(4), ORS 305.620 and ORS chapters 316, 317, and 318; (ii) any tax provisions imposed by a political

#PO-10700-######## – UPS SYSTEM MAINTENANCE SERVICES – STATE DATA CENTER Page 13 of 38 subdivision of this state that applied to Contractor, to Contractor’s property, operations, receipts, or income, or to Contractor’s performance of or compensation for any work performed by Contractor; (iii) any tax provisions imposed by a political subdivision of this state that applied to Contractor, or to goods, services, or property, whether tangible or intangible, provided by Contractor; and (iv) any rules, regulations, charter provisions, or ordinances that implemented or enforced any of the foregoing tax laws or provisions; (c) Contractor is an independent contractor as defined in ORS 670.600; and (d) the supplied Contractor tax identification numbers are true and accurate;

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

16.3. Certifies that Contractor has no undisclosed liquidated and delinquent debt owed to the State or it agencies;

16.4. Certifies that Contractor is an Independent Contractor for all purposes herein;

16.5. Certifies that Contractor has a written policy and practice that meets the requirements, described in ORS 279A.112, of preventing sexual harassment, sexual assault, and discrimination against employees who are members of a protected class. Contractor agrees, as a material term of this Contract, to maintain the policy and practice in force during the entire Contract term; and

16.6. Certifies that Contractor and Contractor’s employees and agents are not included on the list titled “Specially Designated Nationals and Blocked Persons” maintained by the Office of Foreign Assets Control of the United States Department of the Treasury and currently found at https://www.treasury.gov/ofac/downloads/sdnlist.pdf.

https://www.treasury.gov/ofac/downloads/sdnlist.pdf

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17. SIGNATURES

Agreed by:

CONTRACTOR – ________________________________ STATE OF OREGON –

DEPARTMENT OF ADMINISTRATIVE SERVICES

ENTERPRISE ASSET MANAGEMENT DIVISION

BY: BY:

PRINTED NAME: PRINTED NAME: TRAVIS STITZEL

TITLE: TITLE: DAS EAM OPERATIONS & MAINTENANCE MANAGER

DATE: DATE:

STATE OF OREGON – STATE OF OREGON –

DEPARTMENT OF ADMINISTRATIVE SERVICES DEPARTMENT OF ADMINISTRATIVE SERVICES

PROCUREMENT SERVICES ENTERPRISE INFORMATION SERVICES

DATA CENTER SERVICES

BY: BY:

PRINTED NAME: BRENT LUTZ PRINTED NAME: GARY KREIGER

TITLE: PROCUREMENT MANAGER TITLE: DEPUTY DIRECTOR

DATE: DATE:

OREGON DEPARTMENT OF JUSTICE FOR

LEGAL SUFFICIENCY

BY:

PRINTED NAME:

TITLE: ASSISTANT ATTORNEY GENERAL

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EXHIBIT A

STATEMENT OF SERVICES

1 PROJECT DESCRIPTION

Contractor to provide an annual full preventative maintenance service, support, firmware updates, testing and repairs, including emergency services as needed, to elements of the Uninterrupted Power Supply (“UPS”) System serving the critical system Information Technology, Telecommunications, and Infrastructure loads. The availability and reliability of the UPS System is essential to support the Information Technology Infrastructure for the State of Oregon. The Services shall be performed at the State Data Center (“SDC”), located at 530 Airport Road SE, Salem, OR 97301. The SDC is a one (1) story building and is approximately 140,000 square feet.

2 PROJECT SCHEDULE

2.1 Annual Services. Contractor shall perform a full preventative maintenance service, support, firmware updates, testing and repairs (“the Services”) of the UPS System on all the equipment included in this specification on an annual basis. (See Section 4.1.)

2.2 Contractor shall coordinate annually scheduled maintenance visits with DAS EAM Electrical Manager.