S-44300-00016445 Attachment A-1 Sample IGA.pdf

RFP #6251/OB #S-44300-00016445 For System of Care Fiscal Assessment Attachment B

Agreement Number 000000 OregonBuys Number PO-44300-00000000

STATE OF OREGON

INTERGOVERNMENTAL AGREEMENT

You can get this document in other languages, large print, braille, or a format you prefer free of charge. Contact the Agreement Administrator at the contact information found below. We accept all relay calls.

This Agreement is between the State of Oregon, acting by and through its Oregon Health Authority, hereinafter referred to as “OHA,” and

Agency Name Acting by and through its (insert Program Name if applicable)

Address Address

Attention: (required) Telephone: (required)

Fax: (optional) Email address: (required) hereinafter referred to as “Agency.”

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

Health Systems System of Care Advisory Council

500 Summer Street NE Salem, OR 97301

Contract Administrator: Anna K. Williams or delegate Telephone: (971) 678-4347

Email address: anna.k.williams@oha.oregon.gov

000000/initials Page 2 of 32 OHA IGA Non-County Updated: 4/27/2026

1. Effective Date and Duration. This Agreement shall become effective on the later of: (I) the last date all required signatures in Section 6., below have been obtained, or (II) [insert start date] provided it is (i) signed by all parties on or before such date, and (ii) when required, approved in writing by the Oregon Department of Justice on or before such date, and (iii) when required, approved in writing by the Oregon Department of Administrative Services. Unless extended or terminated earlier in accordance with its terms, this Agreement shall expire on [insert end date]. Agreement termination shall not extinguish or prejudice OHA’s right to enforce this Agreement with respect to any default by Agency that has not been cured.

2. Agreement Documents.

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

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

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

(3) Exhibit A, Part 3: Special Provisions

(4) Exhibit B: Standard Terms and Conditions

(5) Exhibit C: Subcontractor Insurance Requirements

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

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

3. Consideration.

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

b. OHA will only pay for completed Work under this Agreement, and may make interim payments as provided for in Exhibit A. For purposes of this Agreement, “Work” means specific work to be performed or services to be delivered by Agency as set forth in Exhibit A.

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

Not applicable Agency is a contractor

Assistance Listings number(s) of federal funds to be paid through this Agreement: N/A

5. Agency Proof of Insurance and Certification.

a. Agency Proof of Insurance. Agency shall provide the following information upon submission of the signed Agreement. All insurance listed herein must be in effect prior to Agreement execution.

PLEASE PRINT OR TYPE THE FOLLOWING INFORMATION:

Workers’ Compensation Insurance Company: _______________________________________

Policy #: __________________________________________ Expiration Date: ________________

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

(1) Agency 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 Agency and that pertains to this Agreement or to the project for which the Agreement work is being performed. Agency 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. The Oregon Attorney General may enforce the

liabilities and penalties provided by the Oregon False Claims Act against the Agency, in addition to any remedies that may be available to OHA under this Agreement;

(2) The information shown in Section 5.a. above is Agency’s true, accurate and correct information;

(3) To the best of the undersigned’s knowledge, Agency 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;

(4) Agency and Agency’s employees and agents are not included

000000/initials Page 4 of 32 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;

(5) Agency is not listed on the non-procurement portion of the General Service Administration’s “List of Parties Excluded from Federal procurement or Non-procurement Programs” found at https://www.sam.gov/SAM;

(6) Agency is not subject to backup withholding because:

(a) Agency is exempt from backup withholding;

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

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

(7) Agency’s Federal Employer Identification Number (FEIN) or Social Security Number (SSN) provided to OHA is true and accurate. If this information changes, Agency shall provide OHA 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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AGENCY, BY EXECUTION OF THIS AGREEMENT, HEREBY ACKNOWLEDGES THAT

AGENCY HAS READ THIS AGREEMENT, UNDERSTANDS IT, AND AGREES TO BE

BOUND BY ITS TERMS AND CONDITIONS.

AGENCY: YOU WILL NOT BE PAID FOR SERVICES RENDERED BEFORE THE

EFFECTIVE DATE OF THIS AGREEMENT.

6. Signatures.

Agency Name By:

Authorized Signature Printed Name

Title Date

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

Authorized Signature Printed Name

Title Date

Approved for Legal Sufficiency:

Oregon Department of Justice Date

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EXHIBIT A

Part 1 Statement of Work

The Statement of Work will be created through negotiations with SOCAC, based on the Proposal submitted by the Proposer awarded a Contract under RFP #6251/OregonBuys # S-44300-00016445.

1. Purpose.

2. Services to be Provided. Agency shall

a. Description of outcomes.

b. Deliverables/Quantities.

c. Delivery Schedule.

3. Reporting Requirements.

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Part 2 Payment and Financial Reporting

Payment and Financial Reporting will be negotiated between the parties based on the Cost Proposal submitted by the Proposer and negotiated Statement of Work.

1. Payment Provisions.

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

(1)

b. Agency Invoice.

(1) Agency shall send all invoices to OHA’s Agreement Administrator at the address specified on page 1, or to any other address as OHA may indicate in writing to Agency.

Agency’s claims to OHA for overdue payments on invoices are subject to ORS 293.462.

(2) Invoices must include the following information:

(a) Agency name;

(b) Invoice number;

(c) Date of invoice;

(d) This Agreement number;

(e) A detailed description of services performed, including the name or names of the individuals who performed the services and prepared the deliverables to which the invoice applies, the dates the services were performed, all deliverables delivered during the period of the invoice, quantity of service provided if billing by unit rate, the rate or rates for the services performed, and the total cost of each service being invoiced;

(f) The total amount due.

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

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Part 3 Special Provisions

1. Confidentiality of Client Information.

a. Client Information.

(1) All information as to personal facts and circumstances obtained by the Agency on the client (“Client Information”) shall be treated as privileged communications, shall be held confidential, and shall not be divulged without the written consent of the client, his or her guardian, or the responsible parent when the client is a minor child, or except as required by other terms of this Agreement. Nothing prohibits the disclosure of information in summaries, statistical, or other forms, which 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 Agreement. Confidentiality policies shall be applied to all requests from outside sources.

(3) If Agency, or any of its officers, directors, employees, agents, or subcontractors receives or has access to confidential Social Security Administration (SSA), Federal Tax Information (FTI) records in the performance of Work under this Agreement, Agency shall comply, and ensure that all of Agency’s officers, directors, employees, agents and subcontractors comply, with the following provisions:

(a) With respect to SSA records:

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

ii. Adhere to the same security requirements as employees of OHA;

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

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iv. Provide its employees and agents the same security awareness training as OHA’s employees;

and

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

(b) With respect to Federal Tax Information (FTI), as defined in IRS Publication 1075:

i. Agency and its officers, directors and employees with access to, or who use FTI provided by OHA must meet the background check requirements defined in IRS Publication 1075;

ii. Any FTI made available to Agency shall be used only for the purpose of carrying out the provisions of this Agreement. Agency shall treat all information contained in FTI as confidential and that information shall not be divulged or made known in any manner to any person except as may be necessary in the performance of this Agreement. Inspection by or disclosure to anyone other than an officer or employee of the Agency is prohibited;

iii. Agency shall account for all FTI upon receipt and shall properly store all FTI before, during, and after processing. In addition, all FTI related output and products will be given the same level of protection as required for the source material;

iv. No work involving FTI furnished under this Agreement will be subcontracted without prior written approval of the IRS;

v. Maintain a list of employees who are authorized access to FTI. Such list will be provided to OHA and, upon request, to the IRS reviewing office; and

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

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

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(d) Agency may be subjected to periodic and ongoing security reviews to ensure compliance with the requirements of Section 1.a.(3).

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

b. Non-Client Information.

(1) Each Party acknowledges that it and any of its officers, directors, employees and agents may, in the course of performing its responsibilities under this Agreement, be exposed to or acquire information that is confidential to the other Party. To the extent permitted by law, any and all information of any form provided to a Party or its officers, directors, employees and agents in the performance of the Agreement that reasonably could at the time of its disclosure be understood to be confidential shall be deemed to be confidential information of the originating Party (“Confidential Non-Client Information”).

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

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

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

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

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

(e) Is disclosed with the written consent of the originating Party; or

(f) Is independently developed by the receiving Party’s officers, directors, employees and agents who can be

000000/initials Page 11 of 32 shown to have had no access to the Confidential Non- Client Information.

(3) Nondisclosure. The receiving Party shall hold all Confidential Non-Client Information in strict confidence, using at least the same degree of care that it uses in maintaining the confidentiality of its own confidential information; and shall not sell, assign, license, market, transfer or otherwise dispose of, give or disclose Confidential Non-Client Information to third parties; shall not use Confidential Non-Client Information for any purposes whatsoever other than as contemplated by this Agreement or reasonably related thereto; and shall advise any of its officers, directors, employees and agents that receive or have access to the Confidential Non-Client Information of their obligations to keep Confidential Non-Client Information confidential. These confidentiality obligations do not restrict disclosure of information otherwise qualifying as Confidential Non-Client Information if the receiving Party can show that either of the following conditions exists: (i) the information was disclosed in response to a subpoena or court order duly issued in a judicial or legislative process, in which case the receiving Party shall notify the originating Party of the subpoena five days prior to the disclosure, unless such notice could not reasonably be given; or (ii) the disclosure was required to respond to a request for the information made under the Oregon Public Records Law, ORS 192.311 to 192.478. The receiving Party shall notify the originating Party of a public records request five days prior to the disclosure.

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

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

(1) For whom OHA must provide Services and incidental or specialized Goods, in any combination thereof (“Services and Incidental Supplies”), according to state, federal law, rule, and policy. Those Services and Incidental Supplies include but are not limited to treatment, care, protection, and support without regard to the proximity of the services being provided;

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

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

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

2. Amendments.

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

(1) OHA may extend the Agreement for additional periods of time up to a total Agreement period of 3 years, and for additional money associated with the extended period(s) of time. The determination for any extension for time may be based on OHA’s satisfaction with performance of the work or services provided by the Agency under this Agreement.

(2) OHA may periodically amend any payment rates throughout the life of the Agreement proportionate to increases of the U.S.

Bureau of Labor Statistics’ Consumer Price Index for the Western Region; and to provide Cost Of Living Adjustments (COLA) if OHA so chooses. Any negotiation of increases in rates to implement a COLA will be as directed by the Oregon State Legislature.

b. OHA further reserves the right to amend the Statement of Work based on the original scope of work of RFP 6251 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 Agreement or previous amendments to the Agreement;

(2) Implement additional phases of the Work; or

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

c. Upon identification, by any party to this Agreement, of any circumstance which may require an amendment to this Agreement, the parties may enter into negotiations regarding the proposed modifications. Any resulting amendment must be in writing and be signed by all parties to the Agreement before the modified or

000000/initials Page 13 of 32 additional provisions are binding on either party. All amendments must comply with Exhibit B, Section 21., “Amendments” of this Agreement.

3. Agency Requirements to Report Abuse of Certain Classes of Persons.

a. Agency shall comply with, and cause all employees, agents and subcontractors to comply with, the applicable laws for mandatory reporting of abuse, including but not limited to abuse of the following persons in Oregon:

(1) Children pursuant to ORS 419B.005 through 419B.015;

(2) Elderly Persons and Adults with Physical Disabilities pursuant to ORS 124.050 through 124.095 and ORS 410.020;

(3) Residents of Nursing Facilities pursuant to ORS 441.630 through 441.645;

(4) Adults with Mental Illness or Developmental Disabilities pursuant to ORS 430.735 through 430.743; and

(5) Abuse of Individuals Living in State Hospitals pursuant to OAR 943-045-0400 through 945-045-0520.

b. Agency shall immediately make reports of suspected abuse of persons who are members of the classes established in Section 3.a.

above to Oregon’s Statewide Abuse Reporting Hotline: 1-855-503-SAFE (7233) or local law enforcement, as a requirement of this Agreement.

Agency does not need to prove abuse occurred, just reasonably suspect abuse occurred, to be required to report.

c. Agency who witnesses or has information about an alleged abusive act that has occurred at OHA’s Oregon State Hospital “OSH” must immediately report the incident directly to the Office of Training, Investigations and Safety (OTIS):

(1) Weekdays 8:00 a.m. – 5:00 p.m. PT at 503-945-9495.

(2) Weekdays, weekend, and holidays 5:00 p.m. – 8:00 a.m. PT at 503-689-5076.

d. Agency who witnesses or has information about an alleged abusive act that has occurred at OSH must also notify the OSH’s Superintendent by one of the methods listed below:

(1) In person;

(2) Hand delivered memorandum;

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(3) Email at dolores.matteucci@oha.oregon.gov; or

(4) Telephone call:

(a) Superintendent - Weekdays 8:00 a.m. – 5:00 p.m. PT at 503-945-2850.

(b) Assistant to Superintendent – Weekdays 8:00 a.m. – 5:00 p.m. PT at 503-945-2852.

(c) After hours including weekends and holidays - to Superintendent via the OSH Communication Center at 503-945-2800.

Regardless of the manner of reporting, a written report must also be submitted which includes details of the incident, date of the report, and name of the reporter.

4. Background Checks. Reserved

5. Equal Access to Services. Agency shall provide equal access to covered services for both males and females under 18 years of age, including access to appropriate facilities, services and treatment, to achieve the policy in ORS 417.270.

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

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EXHIBIT B

Standard Terms and Conditions

1. Governing Law, Consent to Jurisdiction. This Agreement 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 the parties that arises from or relates to this Agreement shall be brought and conducted solely and exclusively within a circuit court for the State of Oregon of proper jurisdiction. THE PARTIES, BY

EXECUTION OF THIS AGREEMENT, HEREBY CONSENT TO THE IN PERSONAM

JURISDICTION OF SAID COURTS. Except as provided in this section, neither party waives any form of defense or immunity, whether sovereign immunity, governmental immunity, immunity based on the eleventh amendment to the Constitution of the United States or otherwise, from any Claim or from the jurisdiction of any court. The parties acknowledge that this is a binding and enforceable agreement and, to the extent permitted by law, expressly waive any defense alleging that either party does not have the right to seek judicial enforcement of this Agreement.

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

All employers, including Agency, that employ subject workers who provide services in the State of Oregon shall comply with ORS 656.017 and provide the required Workers’ Compensation coverage, unless such employers are exempt under ORS 656.126.

3. Independent Contractors. The parties agree and acknowledge that their relationship is that of independent contracting parties and that Agency is not an officer, employee, or agent of the State of Oregon as those terms are used in ORS 30.265 or otherwise.

4. Representations and Warranties.

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

(1) Agency has the power and authority to enter into and perform this Agreement;

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

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

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

(5) Agency prepared its proposal related to this Agreement, 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. Funds Available and Authorized; Payments.

a. The State of Oregon’s payment obligations under this Agreement are conditioned upon OHA receiving funding, appropriations, limitations, allotment, or other expenditure authority sufficient to allow OHA, in the exercise of its reasonable administrative discretion, to meet its payment obligations under this Agreement. Agency is not entitled to receive payment under this Agreement from any part of Oregon state government other than OHA. Nothing in this Agreement is to be construed as permitting any violation of Article XI, Section 7 of the Oregon Constitution or any other law regulating liabilities or monetary obligations of the State of Oregon. OHA represents that as of the date it executes this Agreement, it has sufficient appropriations and limitation for the current biennium to make payments under this Agreement.

b. Payment Method. Payments under this Agreement will be made by Electronic Funds Transfer (EFT). Upon request, Agency shall provide its taxpayer identification number (TIN) and other necessary banking information to receive EFT payment. Agency shall maintain at its own expense a single financial institution or authorized payment agent capable of receiving and processing EFT using the Automated Clearing House (ACH) transfer method. The most current designation and EFT information will be used for all payments under this Agreement. Agency shall provide this designation and information on a form provided by OHA. In the event that EFT information changes or the Agency elects to designate a different financial institution for the

000000/initials Page 17 of 32 receipt of any payment made using EFT procedures, the Agency shall provide the changed information or designation to OHA on an OHA-approved form. OHA is not required to make any payment under this Agreement until receipt of the correct EFT designation and payment information from the Agency.

6. Recovery of Overpayments. IF BILLINGS UNDER THIS AGREEMENT, OR

UNDER ANY OTHER AGREEMENT BETWEEN AGENCY AND OHA, RESULT IN

PAYMENTS TO AGENCY TO WHICH AGENCY IS NOT ENTITLED, OHA, AFTER

GIVING WRITTEN NOTIFICATION TO AGENCY, MAY WITHHOLD FROM

PAYMENTS DUE TO AGENCY SUCH AMOUNTS, OVER SUCH PERIODS OF

TIME, AS ARE NECESSARY TO RECOVER THE AMOUNT OF THE

OVERPAYMENT. NOTHING IN THIS SECTION SHALL REQUIRE AGENCY OR

OHA TO ACT IN VIOLATION OF STATE OR FEDERAL LAW OR THE

CONSTITUTION OF THE STATE OF OREGON.

7. Ownership of Work Product.

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

(1) “Agency Intellectual Property” means any intellectual property owned by Agency and developed independently from the Work.

(2) “Third Party Intellectual Property” means any intellectual property owned by parties other than OHA or Agency.

(3) “Work Product” means every invention, discovery, work of authorship, trade secret or other tangible or intangible item and all intellectual property rights therein that Agency is required to deliver to OHA pursuant to the Work.

b. Original Works. All Work Product created by Agency pursuant to the Work, including derivative works and compilations, and whether or not such Work Product is considered a "work made for hire," shall be the exclusive property of OHA. OHA and Agency agree that all Work Product is "work made for hire" of which OHA is the author within the meaning of the United States Copyright Act. If for any reason the original Work Product created pursuant to the Work is not "work made for hire," Agency hereby irrevocably assigns to OHA any and all of its rights, title, and interest in all original Work Product created pursuant to the Work, whether arising from copyright, patent, trademark, trade secret, or any other state or federal intellectual property law or doctrine. Upon OHA's reasonable request, Agency shall execute such further documents and instruments necessary to

000000/initials Page 18 of 32 fully vest such rights in OHA. Agency forever waives any and all rights relating to original Work Product created pursuant to the Work, including without limitation, any and all rights arising under 17 U.S.C.

§ 106A or any other rights of identification of authorship or rights of approval, restriction or limitation on use or subsequent modifications.

c. In the event that Work Product is Agency Intellectual Property, a derivative work based on Agency Intellectual Property or a compilation that includes Agency Intellectual Property, Agency hereby grants to OHA an irrevocable, non-exclusive, perpetual, royalty-free license to use, reproduce, prepare derivative works based upon, distribute copies of, perform and display Agency Intellectual Property and the pre-existing elements of the Agency Intellectual Property employed in the Work Product, and to authorize others to do the same on OHA's behalf.

d. In the event that Work Product is Third Party Intellectual Property, a derivative work based on Third Party Intellectual Property or a compilation that includes Third Party Intellectual Property, Agency shall secure on OHA's behalf and in the name of OHA an irrevocable, non-exclusive, perpetual, royalty-free license to use, reproduce, prepare derivative works based upon, distribute copies of, perform and display the Third Party Intellectual Property and the pre-existing elements of the Third Party Intellectual Property employed in the Work Product, and to authorize others to do the same on OHA's behalf.

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

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

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

c. Agency (1) applies for or consents to the appointment of, or taking of possession by, a receiver, custodian, trustee, or liquidator of itself or all of its property, (2) admits in writing its inability, or is generally unable, to pay its debts as they become due, (3) makes a general assignment for the benefit of its creditors, (4) is adjudicated a bankrupt or insolvent, (5) commences a voluntary case under the Federal Bankruptcy Code (as now or hereafter in effect), (6) files a

000000/initials Page 19 of 32 petition seeking to take advantage of any other law relating to bankruptcy, insolvency, reorganization, winding-up, or composition or adjustment of debts, (7) fails to controvert in a timely and appropriate manner, or acquiesces in writing to, any petition filed against it in an involuntary case under the Bankruptcy Code, or (8) takes any action for the purpose of effecting any of the foregoing; or

d. A proceeding or case is commenced, without the application or consent of Agency, in any court of competent jurisdiction, seeking (1) the liquidation, dissolution or winding-up, or the composition or readjustment of debts of Agency, (2) the appointment of a trustee, receiver, custodian, liquidator, or the like of Agency or of all or any substantial part of its assets, or (3) similar relief in respect to Agency under any law relating to bankruptcy, insolvency, reorganization, winding-up, or composition or adjustment of debts, and such proceeding or case continues undismissed, or an order, judgment, or decree approving or ordering any of the foregoing is entered and continues unstayed and in effect for a period of sixty consecutive days, or an order for relief against Agency is entered in an involuntary case under the Federal Bankruptcy Code (as now or hereafter in effect).

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

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

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

10. Termination.

a. Agency Termination. Agency may terminate this Agreement:

(1) For its convenience, upon at least 90 days advance written notice to OHA;

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

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

b. OHA Termination. OHA may terminate this Agreement:

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

(2) Upon 45 days advance written notice to Agency, if OHA does not obtain funding, appropriations and other expenditure authorizations from federal, state or other sources sufficient to meet the payment obligations of OHA under this Agreement, as determined by OHA in the reasonable exercise of its administrative discretion. Notwithstanding the preceding sentence, OHA may terminate this Agreement in whole or in part, immediately upon written notice to Agency or at such other time as it may determine if action by the Oregon Legislative Assembly or Emergency Board reduces OHA’s legislative authorization for expenditure of funds to such a degree that OHA will no longer have sufficient expenditure authority to meet its payment obligations under this Agreement, as determined by OHA in the reasonable exercise of its administrative discretion, and the effective date for such reduction in expenditure authorization is less than 45 days from the date the action is taken;

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

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

(5) Immediately upon written notice to Agency, if any license or certificate required by law or regulation to be held by Agency or a subcontractor is for any reason denied, revoked, suspended, not renewed or changed in such a way that Agency or a

000000/initials Page 21 of 32 subcontractor no longer meets requirements to deliver the service. This termination right may only be exercised with respect to the particular part of the Work impacted by the loss of necessary licensure or certification; or

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

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

d. Return of Property. Upon termination of this Agreement for any reason whatsoever, Agency shall immediately deliver to OHA all of OHA’s property (including without limitation any Work Products for which OHA has made payment in whole or in part) that are in the possession or under the control of Agency in whatever stage of development and form of recordation such OHA property is expressed or embodied at that time. Upon receiving a notice of termination of this Agreement, Agency shall immediately cease all activities under this Agreement, unless OHA expressly directs otherwise in such notice of termination. Upon OHA’s request, Agency shall surrender to anyone OHA designates, all documents, research or objects or other tangible things needed to complete the Work Products.

11. Effect of Termination.

a. Entire Agreement.

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

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

b. Obligations and Liabilities. Notwithstanding Section 11.a. above, any termination of this Agreement shall not prejudice any obligations or liabilities of either party accrued prior to such termination.

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12. Limitation of Liabilities. NEITHER PARTY SHALL BE LIABLE TO THE OTHER

FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR

RELATED TO THIS AGREEMENT. NEITHER PARTY SHALL BE LIABLE FOR ANY

DAMAGES OF ANY SORT ARISING SOLELY FROM THE TERMINATION OF THIS

AGREEMENT OR ANY PART HEREOF IN ACCORDANCE WITH ITS TERMS.

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

Agency and OHA each shall be responsible, to the other, to the extent permitted by the Oregon Constitution, subject to the limitations of the Tort Claims Act (ORS 30. 260-30.300), only for the acts, omissions or negligence of its own officers, employees or agents.

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

15. Records Maintenance; Access. Agency shall maintain all financial records relating to this Agreement in accordance with generally accepted accounting principles. In addition, Agency shall maintain any other records, books, documents, papers, plans, records of shipments and payments and writings of Agency, whether in paper, electronic or other form, that are pertinent to this Agreement in such a manner as to clearly document Agency's performance. All financial records, other records, books, documents, papers, plans, records of shipments and payments and writings of Agency whether in paper, electronic or other form, that are pertinent to this Agreement, are collectively referred to as “Records.” Agency acknowledges and agrees that OHA and the Oregon Secretary of State's Office and the federal government and their duly authorized representatives shall have access to all Records to perform examinations and audits and make excerpts and transcripts. Agency shall retain and keep accessible all Records for a minimum of six (6) years, or such longer period as may be required by applicable law, following final payment and termination of this Agreement, or until the conclusion of any audit, controversy or litigation arising out of or related to this Agreement, whichever date is later. Agency shall maintain Records in accordance with the records retention schedules set forth in OAR Chapter 166.

16. Information Privacy/Security/Access. If the Work performed under this Agreement requires Agency, or when allowed, its subcontractor(s) to access or otherwise use any OHA Information Asset or Network and Information

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System in which security or privacy requirements apply, and OHA grants Agency, its subcontractor(s), or both access to such OHA Information Assets or Network and Information Systems, Agency shall comply and require its subcontractor(s) to which such access has been granted to comply with the terms and conditions applicable to such access or use, including OAR 943- 014-0300 through OAR 943-014-0320, 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 943-014-0305, as such rule may be revised from time to time.

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

18. Assignment of Agreement, Successors in Interest.

a. Agency shall not assign or transfer its interest in this Agreement without prior written approval of OHA. Any such assignment or transfer, if approved, is subject to such conditions and provisions as OHA may deem necessary. No approval by OHA of any assignment or transfer of interest shall be deemed to create any obligation of OHA in addition to those set forth in the Agreement.

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

19. Subcontracts. Agency shall not enter into any subcontracts for any of the Work required by this Agreement without OHA’s prior written consent. In addition to any other provisions OHA may require, Agency shall include in any permitted subcontract under this Agreement provisions to ensure that OHA will receive the benefit of subcontractor performance as if the subcontractor were the Agency with respect to Sections 1, 2, 3, 4, 7, 15, 16, 18, 19, 20, and 22 of this Exhibit B. OHA’s consent to any subcontract shall not relieve Agency of any of its duties or obligations under this Agreement.

20. No Third Party Beneficiaries. OHA and Agency are the only parties to this Agreement and are the only parties entitled to enforce its terms. The parties agree that Agency’s performance under this Agreement is solely for the

000000/initials Page 24 of 32 benefit of OHA to assist and enable OHA to accomplish its statutory mission.

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

21. Amendments. No amendment, modification or change of terms of this Agreement shall bind either party unless in writing and signed by both parties and, when required, approved by the Oregon Department of Justice.

Such amendment, modification or change, if made, shall be effective only in the specific instance and for the specific purpose given.

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

23. Survival. Sections 1, 4, 5, 6, 7, 10, 11, 12, 13, 14, 15, 16, 20, 23, 28, 29 and 30 of this Exhibit B shall survive Agreement expiration or termination as well as those the provisions of this Agreement that by their context are meant to survive. Agreement expiration or termination shall not extinguish or prejudice OHA’s right to enforce this Agreement with respect to any default by Agency that has not been cured.

24. Notice. Except as otherwise expressly provided in this Agreement, any communications between the parties hereto or notices to be given hereunder shall be given in writing by email, personal delivery, fax, or mailing the same, postage prepaid to Agency or OHA at the email address, postal address, or number set forth in this Agreement, or to such other addresses or numbers as either party may indicate pursuant to this Section.

Any communication or notice so addressed and mailed is effective five business days after mailing. Any communication or notice delivered by fax is effective on the day the transmitting machine generates a receipt of the successful transmission, if transmission was during normal business hours, or on the next business day if transmission was outside normal business hours of the recipient. To be effective against OHA, any notice transmitted by fax must be confirmed by telephone notice to OHA. Any communication or notice given by personal delivery is effective when actually delivered. Any notice given by email is effective when the sender receives confirmation of

000000/initials Page 25 of 32 delivery, either by return email, or by demonstrating through other technological means that the email has been delivered to the intended email address.

OHA: Office of Contracts & Procurement 500 Summer Street NE, E-03 Salem, OR 97301 Telephone: 503-945-5818 Fax: 503-378-4324

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

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

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

28. Waiver. The failure of either party to enforce any provision of this Agreement shall not constitute a waiver by that party of that or any other provision. No waiver or consent shall be effective unless in writing and signed by the party against whom it is asserted.

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

30. Contribution. If any third party makes any claim or brings any action, suit or proceeding alleging a tort as now or hereafter defined in ORS 30.260 (“Third Party Claim”) against a party (the “Notified Party”) with respect to which the other party (“Other Party”) may have liability, the Notified Party must promptly notify the Other Party in writing of the Third Party Claim and deliver to the Other Party a copy of the claim, process, and all legal pleadings with respect to the Third Party Claim. Either party is entitled to participate in the defense of a Third Party Claim, and to defend a Third Party

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

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

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