S-DASOBO-00001174_AttA_Sample Contract Final~1.pdf

Engineering Services – Contract Documents RFP # S-DASOBO-00001174 Page 1

ATTACHMENT A

SAMPLE

STATE OF OREGON

PROFESSIONAL SERVICES CONTRACT

(Architectural, Engineering, Photogrammetric Mapping, Transportation Planning and Land Surveying Services; Related Services)

THIS PROFESSIONAL SERVICES CONTRACT (the “Contract”) is between the State of Oregon, by and through its Department of Administrative Services, Procurement Services Division (“DAS PS”) on behalf of the Oregon Water Resource Department (“OWRD”), (collectively, the “Agency”), and:

Company

Contract #

Address PCA Project/Phase City, State Zip Phone Fax #

(the “Consultant”). The Agency and Consultant are collectively referred to in this Contract as the "Parties" and individually as a “Party”.

This Contract sets forth the terms and conditions applicable to certain services to be performed by the Consultant related to completion of the following services (the “Services”):

The State if Oregon is requiring engineering services for two project phases. Phase 1 is for extreme atmospheric river precipitation analysis report. Phase 2 depends on resulting Phase 1 report and review Hydro-meteorological Report

(“HMR”) 57.

The purpose of Phase 1 project is to develop a current understanding of the extreme precipitation possible in Oregon, and how this would change with specific climate related and measurable factors. This project is critical and urgent for safety of Oregonians, not just below dams, but in any location that could be affected by changes in extreme flooding. The analysis and report will improve our understanding of the mechanics of precipitation in an extreme atmospheric river event. This work is consistent with adaptation and evaluation of climate change, directly supports planning for these effects, and is consistent with the Governor’s Executive Order 20-04.

The purpose of Phase 2 is being developed but will have the Principal Investigators review Hydro-meteorological Report 57 (Probable Maximum Precipitation – Pacific Northwest States) for consistency with current understanding of atmospheric river meteorology, and to determine extreme precipitation for western Oregon locations.

This Contract shall become effective on the date that the Contract is fully executed by the Parties and all required State of Oregon approvals have been obtained (the “Effective Date”). No Services shall be performed prior to the Effective Date. The Contract shall expire, unless otherwise terminated or extended, on (Insert Date). Generally, the Services to be performed by the Consultant consist of the following engineering services (the “Services”):

Agency projects are in two phases. Phase 1 project will produce report and propose a plan for completion of Phase 2 project.

The Services are more specifically described in the EXHIBIT A, Statement of Work. Agency agrees to pay Consultant a sum not to exceed $_____________ for performance of the Services for Phase 1 project, which shall include all allowable expenses. Progress payments shall be made in accordance with EXHIBIT B, Consultant Compensation.

This Contract consists of these introductory provisions and the signature page(s), Section 1-Relationship of the Parties, Section 2-Consultant’s Responsibilities; Representations and Warranties, Section 3-Responsibilities of Agency; Special Contract Provisions, Section 4-General Contract Provisions and the following exhibits attached hereto and incorporated herein by this reference:

RFP # S-DASOBO-00001174 Page 2

EXHIBIT A: Statement of Work EXHIBIT E: Federal Contract Provisions EXHIBIT B: Consultant Compensation EXHIBIT F: Critical Data Schedule EXHIBIT C: Insurance Provisions EXHIBIT G: Rate Schedule EXHIBIT D: Special Contract Provisions EXHIBIT H: Assumptions and Exclusions

THIS CONTRACT CONSTITUTES THE ENTIRE AGREEMENT BETWEEN THE PARTIES ON THE

SUBJECT MATTERS ADDRESSED HEREIN. THE TERMS OF THIS CONTRACT CANNOT BE WAIVED,

ALTERED, MODIFIED, SUPPLEMENTED OR AMENDED, IN ANY MANNER WHATSOEVER, EXCEPT

BY WRITTEN INSTRUMENT SIGNED BY THE PARTIES AND CONTAINING ALL REQUIRED STATE OF

OREGON APPROVALS. ANY SUCH WAIVER, ALTERATION, MODIFICATION, SUPPLEMENTATION

OR AMENDMENT SHALL BE EFFECTIVE ONLY IN THE SPECIFIC INSTANCE AND FOR THE SPECIFIC

PURPOSE GIVEN. THERE ARE NO UNDERSTANDINGS, AGREEMENTS, OR REPRESENTATIONS,

ORAL OR WRITTEN, REGARDING THIS CONTRACT EXCEPT AS CONTAINED, INCORPORATED OR

REFERENCED HEREIN. CONSULTANT, BY THE SIGNATURE BELOW OF ITS AUTHORIZED

REPRESENTATIVE, HEREBY ACKNOWLEDGES THAT IT HAS READ THIS CONTRACT,

UNDERSTANDS THIS CONTRACT, AND AGREES TO BE BOUND BY ALL OF THIS CONTRACT’S

TERMS AND CONDITIONS. THIS CONTRACT, AND ANY AMENDMENTS TO IT, MAY BE EXECUTED

IN COUNTERPARTS (EACH OF WHICH SHALL BE AN ORIGINAL AND ALL OF WHICH SHALL

CONSTITUTE BUT ONE AND THE SAME INSTRUMENT) OR IN MULTIPLE ORIGINALS. A FAXED

FORM OF THIS CONTRACT OR ANY AMENDMENT THERETO, EXECUTED BY ONE OR MORE OF THE

PARTIES, WILL CONSTITUTE A COUNTERPART, AS LONG AS THE COUNTERPART BEARING THE

PARTY’S ORIGINAL SIGNATURE IS PROMPTLY TRANSMITTED TO THE OTHER PARTY AND

RECEIVED BY THAT PARTY FORTHWITH.

Consultant

Name/Title Date

Department of Administrative Services, Procurement Services on behalf of Agency

Oregon Water Resource Department-

Approved for Legal Sufficiency Department of Justice Name/Title Date

RFP # S-DASOBO-00001174 Page 3

STANDARD TERMS AND CONDITIONS FOR PROFESSIONAL SERVICES

1. RELATIONSHIP OF THE PARTIES

1.1. The Consultant shall provide the Services in

accordance with the terms and conditions of this Contract. The Consultant's performance of Services shall be as a professional consultant to the Agency to achieve the Agency’s objectives.

1.2. In administering this Contract, the Agency may

retain the services of an independent project manager, and other consultants as needed to fulfill the Agency’s objectives.

1.3. The Consultant shall provide a list of all sub-

consultants which the Consultant intends to utilize (the “Sub-consultants”). This list shall include such information on the qualifications of the Sub-consultants as may be requested by the Agency. The Agency reserves the right to review the Sub-consultants proposed. Consultant shall not retain a Sub-consultant to which the Agency has a reasonable objection.

1.4. The Consultant acknowledges that this

Contract was awarded on the basis of the unique background and abilities of the key personnel of the Consultant, and the key personnel of the Sub-consultants identified by Consultant (collectively, the “Key Personnel” and individually, a “Key Person”).

Therefore, Consultant shall make available the Key Personnel identified in its proposal. Consultant shall provide to Agency a list of the Consultant’s Key Personnel, including any Key Personnel of the Sub-consultants, and include that information in Exhibit F. This list shall include such information on the professional background of each Key Person as may be requested by the Agency. In the event that any Key Personnel or Sub-consultants become unavailable to Consultant, the Parties shall mutually agree upon an appropriate replacement. Without prior notice to and the written consent of the Agency, Consultant shall not: (i) re-assign or transfer any Key Person to other duties or positions, so that the Key Person is unable to fully perform his or her responsibilities under the Contract; (ii) allow any Key Person to delegate to anyone his or her performance of any management authority or other responsibility required under the Contract; or (iii) substitute any Key Person. Any of these actions by the Consultant shall constitute a material breach of the Contract. The Consultant shall remove any individual or Sub-consultant from the Project if so directed by Agency in writing following discussion with the Consultant, provided that Consultant shall have a reasonable time period within which to find a suitable replacement.

1.5. The characterization of provisions of the

Contract as material provisions or the failure to comply with certain provisions as a material breach of the Contract shall in no way be construed to mean that any other provisions of the Contract are not material or that failure to comply with any other provisions is not a material breach of the Contract.

2. CONSULTANT'S RESPONSIBILITIES;

REPRESENTATIONS AND WARRANTIES

2.1. Consultant agrees that:

2.1.1. The phrase “Standard of Care” that is used in

this Contract is defined as follows: the same professional skill, care, diligence and standards as other professionals performing similar services under similar conditions (the “Standard of Care”);

2.1.2. Consultant shall perform all Services in

accordance with the Standard of Care;

2.1.3. Consultant shall prepare, in accordance with

the Standard of Care, all deliverables and other documents, so that they accurately reflect, fully comply with and incorporate all applicable laws, rules, and regulations, and so that they are complete and functional for the purposes intended, except as to any deficiencies which are due to causes beyond the control of Consultant;

2.1.4. Consultant shall be responsible for correcting

any inconsistencies, errors or omissions in the deliverables and other documents prepared by Consultant at no additional cost to Agency;

2.1.5. Agency’s review or acceptance of documents

shall not be deemed as approval of the adequacy of the drawings, specifications, deliverables and other documents. Any review or acceptance by Agency will not relieve Consultant of any responsibility for complying with the Standard of Care;

2.1.6. Except as provided in Supplemental Services

addressed within Exhibits A and B, Consultant shall, at no additional cost to Agency, render assistance to Agency in resolving problems or other issues;

2.1.7. During the term of the Contract, Consultant

shall obtain, hold, maintain and fully pay for all licenses and permits required by law for Consultant to conduct its business and perform the Services.

During the term of the Contract, Agency shall pay for and Consultant shall obtain, hold and maintain all licenses required to perform the Services;

2.1.8. Consultant shall pay all Sub-consultants and

other subcontractors as required by Consultant’s

RFP # S-DASOBO-00001174 Page 4 contracts with those Sub-consultants and subcontractors. Consultant agrees that Agency has no direct or indirect contractual obligation or other legal duty whatsoever to pay the Sub-consultants and other subcontractors of Consultant or otherwise ensure that Consultant makes full and timely payment to those Sub-consultants and subcontractors for services performed.

2.1.9. Certified Business Firms. Respecting

certification as a disadvantaged business enterprise, minority-owned business, woman-owned business, business that a service-disabled veteran owns or an emerging small business under ORS 200.055 (a “Certified Business Firm”), as and when applicable, the Consultant shall maintain any certifications applicable to the Consultant, and require in its subcontracts that subcontractors maintain any applicable certifications required by Section 2, Chapter 325, Oregon Laws 2015, as amended by Section 26, Chapter 565, Oregon Laws 2015 as a material condition of the Contract. If the Consultant or subcontractor was awarded the Contract or any underlying subcontract, as applicable, in the course of the Agency’s carrying out an affirmative action goal, policy or program under ORS 279A.100 – 279A.107, and fails to maintain the required certification, Agency may terminate the Contract, require the Consultant to terminate the subcontractor, or exercise any of the remedies reserved for breach of the Contract; and

2.1.10. Certified Business Firm Outreach Plan. If

Consultant submitted a Certified Business Firm Outreach Plan as part of the procurement process for this Contract, that plan is incorporated by reference into this Contract as though fully set forth herein.

Consultant, as performance obligations of this Contract, shall conduct the outreach, subcontracting and assistance efforts included in Consultant’s Certified Business Firm Outreach Plan.

2.2. Consultant represents and warrants to Agency

that:

2.2.1. Consultant has the power and authority to enter

into this Contract and perform the Services under this Contract; the persons executing this Contract on behalf of Consultant have the actual authority to bind Consultant to the terms of this Contract;

2.2.2. When executed and delivered, this Contract

shall be a valid and binding obligation of Consultant enforceable in accordance with its terms; the provisions of this Contract do not conflict with or result in a default under any agreement or other instrument binding upon Consultant and do not result in a violation of any law, regulation, court decree or court order or other legal process applicable to Consultant;

2.2.3. Consultant shall, at all times during the term of

this Contract, be duly licensed to perform the Services, and if there is no licensing requirement for the profession or Services, be duly qualified and competent;

2.2.4. Consultant is an experienced firm having the

skill, legal capacity, and professional ability necessary to perform all the Services required under this Contract;

2.2.5. Consultant has the capabilities and resources

necessary to perform Consultant's obligations under this Contract;

2.2.6. Consultant is, or shall become, in a manner

consistent with the Standard of Care, familiar with all current laws, rules, and regulations which are applicable to the design, construction and management of the Project; and

2.2.7. All Services shall be performed in accordance

with the Standard of Care.

2.3. The warranties set forth in this section are in

addition to, and not in lieu of, any other warranties provided in this Contract or at law.

3. RESPONSIBILITIES OF THE AGENCY;

SPECIAL CONTRACT PROVISIONS

The Agency’s responsibilities under this Contract, and certain additional responsibilities of the Consultant, are set forth in Exhibit D-Special Contract Provisions.

4. GENERAL CONTRACT PROVISIONS

4.1. Contract Performance. The Consultant shall

at all times perform the Services diligently and without delay, and shall punctually fulfill all Contract requirements, consistent with the schedule for the performance of the Services set forth in Exhibits A and E. Expiration or termination of the Contract shall not extinguish, prejudice, or limit either party's right to enforce this Contract with respect to any default or defect in performance. Time is of the essence in the performance of this Contract.

4.2. Access to Records. For not less than three (3)

years after the Contract’s expiration or termination, the Agency, the Secretary of State's Office of the State of Oregon, the federal government, and their duly authorized representatives shall have access to the books, documents, papers, and records of the Consultant and the Sub-consultants which pertain to the Contract for the purpose of making audits, examination, excerpts, and transcripts. If for any reason, any part of this Contract, any related

RFP # S-DASOBO-00001174 Page 5 consultant contract or any related construction contract(s) is involved in litigation, Consultant shall retain all pertinent records for not less than three years or until all litigation is resolved, whichever is longer.

Consultant shall provide the Agency and the other entities referenced above with full access to these records in preparation for and during litigation.

4.3. Funds Available and Authorized. Agency

reasonably believes as of the Effective Date, that sufficient funds are available and authorized for expenditure to finance the cost of this Contract within the Agency’s appropriation or limitation. Consultant understands and agrees that, to the extent that sufficient funds are not available and authorized for expenditure to finance the cost of this Contract, Agency’s payment of amounts under this Contract attributable to Services performed after the last day of the current biennium or fiscal year, as applicable, is contingent on Agency receiving from the Oregon Legislative Assembly 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.

4.4. Insurance. Consultant shall maintain in effect

for the duration of this Contract, or any other time periods required herein, the insurance set forth in Exhibit C-Insurance Provisions.

4.5 Indemnity.

4.5.1. CLAIMS FOR OTHER THAN

PROFESSIONAL LIABILITY. CONSULTANT

SHALL INDEMNIFY, DEFEND, SAVE, AND

HOLD HARMLESS THE STATE OF OREGON

AND AGENCY, AND THEIR OFFICERS,

AGENTS, AND EMPLOYEES, FROM AND

AGAINST ALL CLAIMS, SUITS, ACTIONS,

LOSSES, DAMAGES, LIABILITIES, COSTS AND

EXPENSES OF WHATSOEVER NATURE

RESULTING FROM OR ARISING OUT OF THE

ACTS OR OMISSIONS OF CONSULTANT OR

ITS SUB-CONSULTANTS, SUBCONTRACTORS,

AGENTS, OR EMPLOYEES UNDER THIS

CONTRACT.

4.5.2. CLAIMS FOR PROFESSIONAL LIABILITY.

CONSULTANT SHALL INDEMNIFY, DEFEND,

SAVE, AND HOLD HARMLESS THE STATE OF

OREGON AND AGENCY, AND THEIR

OFFICERS, AGENTS, AND EMPLOYEES, FROM

AND AGAINST ALL CLAIMS, SUITS, ACTIONS,

LOSSES, DAMAGES, LIABILITIES, COSTS AND

EXPENSES OF WHATSOEVER NATURE

ARISING OUT OF THE PROFESSIONALLY

NEGLIGENT ACTS, ERRORS OR OMISSIONS

OF CONSULTANT OR ITS

SUB-CONSULTANTS, SUBCONTRACTORS,

AGENTS, OR EMPLOYEES IN THE

PERFORMANCE OF PROFESSIONAL

SERVICES UNDER THIS CONTRACT.

4.5.3. Agency Defense Requirements.

Notwithstanding the obligations under Sections 4.5.1 and 4.5.2, neither Consultant nor any attorney engaged by Consultant shall defend any claim in the name of the State of Oregon or any agency of the State of Oregon, nor purport to act as legal representative of the State of Oregon or any of its agencies, without the prior written consent of the Oregon Attorney General. Agency may, at any time and at its election, assume its own defense and settlement of any claims in the event that: it determines that Consultant is prohibited from defending the State of Oregon; Consultant is not adequately defending the State of Oregon's interests;

an important governmental principle is at issue; or it is in the best interests of the State of Oregon to do so.

The State of Oregon reserves all rights to pursue any claims it may have against Consultant if the State of Oregon elects to assume its own defense.

4.5.4. Agency’s Actions. This Section 4.5 does not

include indemnification by Consultant of the State of Oregon or Agency or their officers, agents, and employees, for the acts or omissions of the State of Oregon, Agency or their officers, agents, and employees, whether within the scope of the Contract or otherwise.

4.6. Consultant’s Status.

4.6.1. Consultant shall perform all Services as an

independent contractor. Although Agency reserves the right to set the delivery schedule for the Services to be performed and to evaluate the quality of the completed performance, Agency cannot and will not control the means and manner of Consultant’s performance. Consultant is responsible for determining the appropriate means and manner of performing the Services. Consultant, Consultant’s employees and the Sub-consultants are not “officers, employees, or agents” of the State of Oregon or Agency, as those terms are used in ORS 30.265.

4.6.2. Consultant shall not have control or charge of, and shall not be responsible for, the acts or omissions of other consultants or contractors under contract with Agency who are performing services or construction work. However, this provision does not in any way change Consultant’s professional responsibility to report to Agency any information, including information on the performance of consultants or contractors outside the control or charge of Consultant, concerning activities or conditions that have or could have an adverse effect on Agency.

4.6.3. Consultant is not a contributing member of the

Public Employee's Retirement System and will be responsible for any federal, state or other taxes

RFP # S-DASOBO-00001174 Page 6 applicable to any compensation or payments paid to Consultant under this Contract. Consultant will not be eligible for any benefits from any payments made under this Contract for federal Social Security, unemployment insurance, or worker’s compensation, except as a self-employed individual. If any payment under this Contract is to be charged against federal funds, Consultant certifies that it is not currently employed by the federal government.

4.7. Successors & Assignments. The provisions of

this Contract shall be binding upon and shall inure to the benefit of the Parties, and their respective successors and assigns. After the original Contract is executed, the Consultant shall not enter into any Sub-consultant agreements for any of the Services or assign or transfer any of its interest in this Contract, without the prior written consent of the Agency.

4.8. Compliance with Applicable Law.

Consultant shall comply with all federal, state and local laws, regulations, executive orders and ordinances applicable to the Services. Agency’s performance under this Contract is conditioned upon Consultant's compliance with the provisions of ORS 279C.505, 279C.515, 279C.520, and 279C.530, which are hereby incorporated by reference. Consultant, the Sub-consultants, if any, and all employers providing Services, labor or materials under this Contract are subject employers under the Oregon workers' compensation law and shall comply with ORS

656.017. All rights and remedies available to the

Agency under applicable federal, state and local laws are also incorporated by reference herein and are cumulative with all rights and remedies under the Contract.

4.9. Governing Law; Jurisdiction; Venue. This

Contract shall be governed by, construed in accordance with, and enforced 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 Agency and Consultant that arises from or relates to this Contract shall be brought and conducted solely and exclusively within the Circuit Court of Marion County for the State of Oregon; provided, however, if a Claim must be brought in a federal forum, then it shall be brought and conducted solely and exclusively within the United States District Court for the District of Oregon. In no event shall this Section 4.9 be construed as a waiver by the State of Oregon of any form of defense or immunity, whether based on sovereign immunity, governmental immunity, immunity based on the Eleventh Amendment to the United States Constitution or otherwise.

CONSULTANT, BY EXECUTION OF THIS

CONTRACT, HEREBY CONSENTS TO THE IN

PERSONAM JURISDICTION OF SAID COURTS.

Compliance with Executive Order 21-29.

Consultant shall comply with EO 21-29. Consultant certifies that for the term of the Contract or the duration of EO-21-29, whichever expires or terminates first, each Worker who provides goods and services at an Executive Branch Worksite is Fully Vaccinated against COVID-19 unless an exception under paragraph 6 of EO 21-29 applies. The definitions in (“Special Definitions for Interpreting EO 21-19 Obligations”) below apply to this section.

Consultant shall maintain in its records Proof of Vaccination or permitted exceptions under section 6 of EO 21-29 for such Workers providing goods and services at an Executive Branch Worksite. Consultant shall provide written certification of its compliance with EO 21-29 on request of the State. The State reserves the right to request the documentation supporting Consultant’s certification. Consultant’s compliance with this section is a material term of this Contract, and Consultant’s failure to comply constitutes a breach entitling Agency to terminate this Contract for cause.

SPECIAL DEFINITIONS FOR

INTERPRETING EO 21-29 OBLIGATIONS:

“EO 21-29” means Governor of the State of Oregon’s Executive Order 21-29 as may be amended, https://www.oregon.gov/gov/Documents/executive_ orders/eo_21-29.pdf.

“FAQ” means the Executive Order 21-29 Vaccination Requirements for State Contractors Frequently Asked Questions as may be amended.

ExecutiveOrder21-29_ContractorFAQ.pdf (oregon.gov)

For interpretation of provisions relating to EO 21-19:

a. The terms "Executive Branch," "COVID- 19," "Fully Vaccinated," "Proof of Vaccination," "Employee," and "Worker" have the meanings defined in EO 21-19.

b. The term “Worksite” has the meaning defined in the FAQ.

4.10. Tax Compliance Certification; Non-

Discrimination Certification.

4.10.1. Any individual signing this Contract on

behalf of Consultant certifies under penalty of perjury that the individual is authorized to act on behalf of the Consultant, has authority and knowledge regarding Consultant’s payment of taxes, and that the Consultant is, to the best of the individual’s knowledge, not in violation of any Oregon Tax Laws.

For purposes of this certification, “Oregon Tax Laws” means a state tax imposed by ORS 320.005 to

320.150 and 403.200 to 403.250, ORS Chapters 118, https://www.oregon.gov/gov/Documents/executive_orders/eo_21-29.pdf https://www.oregon.gov/gov/Documents/executive_orders/eo_21-29.pdf https://www.oregon.gov/das/Procurement/Documents/ExecutiveOrder21-29_ContractorFAQ.pdf https://www.oregon.gov/das/Procurement/Documents/ExecutiveOrder21-29_ContractorFAQ.pdf

RFP # S-DASOBO-00001174 Page 7

314, 316, 317, 318, 321, and 323; and local taxes administered by the Department of Revenue under

ORS 305.620.

4.10.2 Any violation of Section 4.10.1 constitutes a

material breach of this Contract. Any violation entitles Agency to terminate this Contract in whole or in part, to pursue and recover any and all damages that arise from the breach and the termination of this Contract, and to pursue any or all of the remedies available under this Contract, at law, or in equity, including but not limited to, exercise of the right of setoff, or garnishment if applicable, and withholding of amounts otherwise due and owing to the Consultant without penalty.

4.10.3 Consultant certifies that Consultant 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. The Consultant’s policy and practice must include, but not be limited to, giving employees a written notice of the policy that both prohibits and prescribes disciplinary measures for conduct that constitutes sexual harassment, sexual assault, or unlawful discrimination. “Protected class” means a group of persons distinguished by race, color, religion, sex, sexual orientation, national origin, marital status, veteran status, disability or age.

Consultant agrees, as a material term of the Contract, to maintain the policy and practice in force during the entire Contract term.

4.11. Severability. The Parties agree that if any term

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

4.12. Force Majeure. Neither party shall be held

responsible for delay or default in the performance of its obligations due to a cause beyond its reasonable control, including, but not limited to fire, riot, acts of God, terrorist acts or war where such cause was beyond such party's reasonable control. Each party 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 the Contract.

4.13. Waiver. The failure of the Agency to enforce

any provision of this Contract shall not constitute a waiver by the Agency of that or any other provision.

4.14. Third Party Beneficiaries. Nothing contained

in this Contract shall create a contractual relationship with or a cause of action in favor of a third party against the Agency or Consultant. Consultant's Services under this Contract shall be performed solely for the Agency’s benefit, and no other entity or person shall have any claim against Consultant because of this Contract for the performance or nonperformance of Services hereunder.

4.15. Ownership of Work Product;

Confidentiality.

4.15.1 Definitions. As used in this Contract, the

following terms have the meanings set forth below:

a. “Consultant Intellectual Property” means any intellectual property that is owned by Consultant and developed independently from this Contract and that is applicable to the Services or included in the Work Product.

b. “Third Party Intellectual Property” means any intellectual property that is owned by parties other than the Agency or Consultant and that is applicable to the Services or included in the Work Product.

c. “Work Product” means the Services the Consultant is required to deliver to the Agency under this Contract. Work Product includes every invention, discovery, work of authorship, trade secret or other tangible or intangible item and all intellectual property rights therein, and all copies of plans, specifications, reports and other materials, whether completed, partially completed or in draft form.

4.15.2 Work Product. Except as provided in

Sections 4.15.3 and 4.15.4, all Work Product created by Consultant pursuant to this Contract, including derivative works and compilations, and whether or not such Work Product is considered a “work made for hire” or an employment to invent, shall be the exclusive property of Agency. Agency and Consultant agree that such original works of authorship are “work made for hire” of which Agency is the author within the meaning of the United States Copyright Act. To the extent that Agency is not the Agency of the intellectual property rights in such Work Product, Consultant hereby irrevocably assigns to Agency any and all of its rights, title, and interest in all original Work Product created pursuant to this Contract, whether arising from copyright, patent, trademark, trade secret, or any other state or federal intellectual property law or doctrine. Upon Agency’s reasonable request, Consultant shall execute such further documents and instruments necessary to fully vest such rights in Agency. Consultant forever waives any and all rights relating to original Work Product created pursuant to this Contract, including

RFP # S-DASOBO-00001174 Page 8 without limitation, any and all rights arising under 17 USC §106A or any other rights of identification of authorship or rights of approval, restriction or limitation on use or subsequent modifications.

4.15.3 Consultant Intellectual Property. In the event

that Consultant Intellectual Property is necessary for the use of any Work Product, Consultant hereby grants to the Agency an irrevocable, non-exclusive, non-transferable, perpetual, royalty-free license to use the Consultant Intellectual Property, including the right of the Agency to authorize contractors, consultants and others to use the Consultant Intellectual Property, for the purposes described in this Contract.

4.15.4 Third Party Intellectual Property. In the event

that Third Party Intellectual Property is necessary for the use of any Work Product, Consultant shall secure on Agency’s behalf and in the name of Agency, an irrevocable, non-exclusive, non-transferable, perpetual, royalty-free license to use the Third Party Intellectual Property, including the right of Agency to authorize contractors, consultants and others to use the Third Party Intellectual Property, for the purposes described in this Contract.

4.15.5 Consultant Intellectual Property-Derivative

Work. In the event that Work Product created by Consultant under this Contract is a derivative work based on Consultant Intellectual Property, or is a compilation that includes Consultant Intellectual Property, Consultant hereby grants to the Agency an irrevocable, non-exclusive, non-transferable, perpetual, royalty-free license to use the pre-existing elements of the Consultant Intellectual Property employed in the Work Product, including the right of the Agency to authorize contractors, consultants and others to use the pre-existing elements of the Consultant Intellectual Property employed in a Contract Work Product, for the purposes described in this Contract.

4.15.6 Third Party Intellectual Property-Derivative

Work. In the event that Work Product created by Consultant under this Contract is a derivative work based on Third Party Intellectual Property, or is a compilation that includes Third Party Intellectual Property, Consultant shall secure on the Agency’s behalf and in the name of the Agency an irrevocable, non-exclusive, non-transferable, perpetual, royalty-free license to use the pre-existing elements of the Third Party Intellectual Property employed in a Contract Work Product, including the right to authorize contractors, consultants and others to use the pre-existing elements of the Third Party Intellectual Property employed in a Contract Work Product, for the purposes described in this Contract.

4.15.7 Limited Agency Indemnity. To the extent

permitted by the Oregon Constitution, Article XI, Section 7, and by the Oregon Tort Claims Act, ORS

30.260 through 30.397, the Consultant shall be indemnified, and held harmless by the Agency from liability arising out of re-use or alteration of the Work Product by the Agency, which was not specifically contemplated and agreed to by the Parties in this Contract or under separate contract.

4.15.8 Consultant Use of Work Product. Consultant

may refer to the Work Product in its brochures or other literature that Consultant utilizes for advertising purposes and, unless otherwise specified, the Consultant may use standard line drawings, specifications and calculations on other, unrelated projects.

4.15.9 Confidential Information. Consultant

acknowledges that the Consultant, and the Consultant’s employees, Sub-consultants and agents may, in the course of performing their responsibilities under this Contract, be exposed to or acquire information that is confidential information of the Agency or the Agency’s clients. Any and all Agency information marked “confidential” or otherwise identified as confidential in a separate writing that comes into the possession of the Consultant or the Consultant’s employees, Sub-consultants or agents during the performance of this Contract shall be deemed to be confidential information of the Agency (“Confidential Information”). Any reports or other documents or items, including but not limited to software, that result from the Consultant’s use of the Confidential Information, as well as any Work Product that Agency designates as confidential shall be treated with respect to confidentiality in the same manner as the Confidential Information. Confidential Information shall be deemed not to include information that (a) is or becomes (other than by disclosure by Consultant) publicly known; (b) is furnished by the Agency to others without restrictions similar to those imposed by this Contract; (c) is rightfully in Consultant’s possession without the obligation of nondisclosure prior to the time of its disclosure under this Contract; (d) is obtained from a source other than the Agency without the obligation of confidentiality, (e) is disclosed with the written consent of the Agency, or; (f) is independently developed by employees or agents of Consultant who can be shown to have had no access to the Confidential Information.

4.15.10 Non-Disclosure. Consultant agrees to hold

Confidential Information in strict confidence, using at least the same degree of care that Consultant uses in maintaining the confidentiality of its own confidential information, and not to copy, reproduce, sell, assign, license, market, transfer or otherwise dispose of, give, or disclose Confidential Information to third parties, or use Confidential Information for any purposes whatsoever other than the provision of Services to the Agency under this Contract, and to advise each of its

RFP # S-DASOBO-00001174 Page 9 employees, Sub-consultants and agents of their obligations to keep Confidential Information confidential. Consultant shall use its best efforts to assist the Agency in identifying and preventing any unauthorized use or disclosure of any Confidential Information. Without limiting the generality of the foregoing, Consultant shall advise the Agency immediately in the event Consultant learns or has reason to believe that any person who has had access to Confidential Information has violated or intends to violate the terms of this Contract and Consultant will at its expense cooperate with the Agency in seeking injunctive or other equitable relief in the name of the Agency or Consultant against any such person.

Consultant agrees that, except as directed by the Agency, Consultant will not at any time during or after the term of this Contract disclose, directly or indirectly, any Confidential Information to any person, except in accordance with this Contract, and that upon termination of this Contract or at the Agency’s request, Consultant will turn over to the Agency all documents, papers, and other matter in Consultant's possession that embody Confidential Information.

4.15.11 Injunctive Relief. Consultant acknowledges

that breach of this Section 4.15, including disclosure of any Confidential Information, will give rise to irreparable injury to the Agency that is inadequately compensable in damages. Accordingly, the Agency may seek and obtain injunctive relief against the breach or threatened breach of any provision of this Section 4.15, in addition to any other legal remedies that may be available. Consultant acknowledges and agrees that the covenants contained herein are necessary for the protection of the legitimate business interests of the Agency and are reasonable in scope and content.

4.15.12 Publicity. Consultant agrees that news

releases and other publicity relating to the subject of this Contract will be made only with the prior written consent of the Agency.

4.15.13 Security. Consultant shall comply with all

virus-protection, access control, back-up, password, and other security and other information technology policies of the Agency when using, having access to, or creating systems for any of the Agency’s computers, data, systems, personnel, or other information resources.

4.16. Termination.

4.16.1. Parties Right to Terminate by Agreement.

This Contract may be terminated, in whole or in part, by written mutual agreement of the Parties.

4.16.2. Agency’s Right to Terminate in the Public

Interest. Agency may, at its sole discretion, terminate this Contract, when such termination is in the public interest of the Agency, in whole or in part, by written notice to the Consultant specifying the termination date.

4.16.3. Agency’s Right to Terminate for Cause.

Agency may terminate this Contract immediately, in whole or in part, upon written notice to Consultant, or such later date as Agency may establish in such notice, upon the occurrence of any of the following events:

4.16.3.1. Agency lacks lawful funding, appropriations, limitations or other expenditure authority at levels sufficient to allow Agency, in the exercise of its reasonable discretion, to pay for Consultant’s Services;

4.16.3.2. Federal, state or local laws, regulations or

guidelines are modified or interpreted in such a way that either the Services under this Contract are prohibited, or Agency is prohibited from paying for such Services from the planned funding source;

4.16.3.3. Consultant no longer holds any license or

certificate that is required to perform the Services; or

4.16.3.4. Consultant fails to provide Services within

the times specified or allowed under this Contract, fails to perform any of the provisions of this Contract, or so fails to perform the Services as to endanger performance of this Contract in accordance with its terms, and after receipt of written notice from Agency, does not correct such failures within the time that the Agency specifies (which shall not be less than 10 calendar days, except in the case of emergency).

4.16.3.5. Consultant has liquidated and delinquent

debt owed to the State of Oregon or any department or agency of the State of Oregon.

4.16.4. Cessation of Services. Upon receiving a

notice of termination, and except as otherwise directed in writing by the Agency, Consultant shall immediately cease all activities related to the Services.

4.16.5. Consultant’s Right to Terminate for Cause.

4.16.5.1. Consultant may terminate this Contract if

Agency fails to pay Consultant pursuant to this Contract, provided that Agency has failed to make such payment to Consultant within forty five (45) calendar days after receiving written notice from Consultant of such failure.

4.16.5.2. Consultant may terminate this Contract, for

reasons other than non-payment, if Agency commits any material breach or default of any covenant, warranty, obligation or agreement under this Contract, fails to perform under the Contract within

RFP # S-DASOBO-00001174 Page 10 the time specified, or so fails to perform as to endanger Consultant’s performance under this Contract, and such breach, default or failure is not cured within thirty (30) calendar days after delivery of Consultant’s notice, or such longer period as Consultant may specify in such notice.

4.16.6. Delivery of Work Product/Retained

Remedies of Agency. As directed by the Agency, Consultant shall upon termination, promptly deliver to the Agency all documents, information, works in progress, Work Product and other property that are deliverables or would be deliverables if the Contract had been completed. By Consultant's signature on this Contract, Consultant allows Agency to use Work Product and other property for Agency’s intended use. The rights and remedies of the Agency provided in this Section 4.16 are not exclusive and are in addition to any other rights and remedies provided by law or under this Contract.

4.16.7. Payment upon Termination

4.16.7.1.In the event of termination pursuant to Sections 4.16.1, 4.16.2, 4.16.3.1, 4.16.3.2 or 4.16.5, Consultant’s sole remedy shall be a claim for the sum designated for accomplishing the Services multiplied by the percentage of Services completed and accepted by Agency, plus Consultant’s reasonable Contract close-out costs, less previous amounts paid and any claim(s) which Agency has against Consultant, except in the event of a termination under Section 4.16.3.1, where no payment will be due and payable for Services performed or costs incurred after the last day of the current biennium or fiscal year, as applicable, consistent with Section 4.3. Within 30 days after termination, Consultant shall submit an itemized invoice for all un-reimbursed Services completed before termination and all Contract close-out costs actually incurred by Consultant. Agency shall not be obligated to pay for any such costs invoiced to and received by the Agency later than 30 days after termination. If previous amounts paid to Consultant exceed the amount due to Consultant under this subsection, Consultant shall promptly pay any excess amount to the Agency upon demand.

4.16.7.2. In the event of termination pursuant to

Section 4.16.3.3 or Section 4.16.3.4, or Section 4.16.3.5, Agency shall have any remedy available to it in law or equity, including, but not limited to, undertaking collection by administrative offset, or garnishment if applicable, of all monies due for Services to recover liquidated and delinquent debt owed to the State of Oregon or any department or agency of the State of Oregon.. Offsets or garnishment may be initiated after the Contractor has been given notice, if required by law. Such remedies may be pursued separately, collectively or in any order whatsoever. If it is determined for any reason that Consultant was not in default under Section

4.16.3.3 or Section 4.16.3.4, or 4.16.3.5, the rights and obligations of the Parties shall be the same as if the Contract was terminated pursuant to Section 4.16.2.

4.17. Foreign Contractor. If Consultant is not

domiciled in or registered to do business in the State of Oregon as of the Effective Date, Consultant shall promptly provide to the Oregon Department of Revenue and the Secretary of State’s Corporation Division all information required by those agencies relative to this Contract. Consultant shall demonstrate its legal capacity to perform the Services under this Contract in the State of Oregon prior to executing this Contract.

4.18. Notice. Except as otherwise expressly provided

in this Contract, any notices to be given hereunder shall be given in writing by personal delivery, facsimile, or mail, postage prepaid, to Consultant or Agency at the address or number set forth in Exhibit A, or to such other address or number as either party may provide pursuant to this Section 4.18. Any notice delivered by mail shall be deemed to be given five (5) calendar days after the date of mailing. Any notice delivered by facsimile shall be deemed to be given when the transmitting machine generates a receipt of the transmission. To be effective against Agency, any facsimile communication or notice must be confirmed by telephone notice to the Agency’s representative for this Contract (the “Agency’s Representative”), as indicated in Exhibit A, and shall not be deemed to be given until such confirmation is completed. Any notice by personal delivery shall be deemed to be given when actually delivered. Regular, day-to-day communications between the Parties may be transmitted through one of the methods set forth above, in person, by telephone, by e-mail, or by other similar electronic transmission.

4.19. Media Contacts; Confidentiality. Consultant

shall provide no news release, press release, or any other statement to a member of the news media regarding these Services, without the Agency’s prior written authorization.

4.20. Conflict of Interest. Except with Agency’s

prior written consent, Consultant shall not engage in any activity, or accept any employment, interest or contribution that would or would reasonably appear to compromise Consultant’s professional judgment with respect to these Services.

4.21. Compliance with Executive Order 21-29.

Contractor shall comply with EO 21-29. Contractor certifies that for the term of the Contract or the duration of EO-21-29, whichever expires or

RFP # S-DASOBO-00001174 Page 11 terminates first, each Worker who provides goods and services at an Executive Branch Worksite is Fully Vaccinated against COVID-19 unless an exception under paragraph 6 of EO 21-29 applies. The definitions in Section 4.15.1 (“Special Definitions for Interpreting EO 21-19 Obligations”) apply to this section. Contractor shall maintain in its records Proof of Vaccination or permitted exceptions under section 6 of EO 21-29 for such Workers providing goods and services at an Execution Branch Worksite. Contractor shall provide written certification of its compliance with EO 21-29 on request of the State. The State reserves the right to request the documentation supporting Contractor’s certification. Contractor’s compliance with this section is a material term of this Contract, and Contractor’s failure to comply constitutes a breach entitling Agency to terminate this Contract for cause.

Contract Exhibits A through H are attached:

RFP # S-DASOBO-00001174 Page 12

STANDARD PROFESSIONAL SERVICES CONTRACT

EXHIBIT A

STATEMENT OF WORK

Agency and Consultant agree that the following Services shall be provided by Consultant for Phase 1 of the project. For purposes of this Contract, “Basic Services” are those Services described of this Exhibit A.

DESCRIPTION OF SERVICES:

The Phase 1 Services must determine how extreme precipitation is influenced by ocean and air temperature, and other factors, especially those that could be measured over time for change. The Phase 2 work will be to have the principal investigators review Hydro-meteorological Report (“HMR”) 57 (Probable Maximum Precipitation – Pacific Northwest States) for consistency with current understanding of atmospheric river meteorology, and to determine extreme precipitation for western Oregon locations.

The Phase 1 Services must be focused specifically at Oregon west of the Cascade Mountain Crest. The work will evaluate orographic effects of the Coastal and Cascade mountains. The boundaries of the study area north of Mount Hood goes to the east boundary of the Hood river watershed, and in southern Oregon goes to the east boundary of the Jenny Creek watershed.

This Phase 1 Services will require very specialized technical team members, including but not limited to, the following key persons. The key persons for this project are the lead meteorology expert on atmospheric rivers as a consultant to the project to review methods proposed for the analysis and the lead project manager/manager with expertise and experience in western states hydrology, especially as related to extreme flooding. For performing the Services under this Contract, Consultant shall use State of the Science meteorologic approaches, which include, but may not be limited to, evaluation of historic storm records that are directly relevant to extreme precipitation in Oregon. The project may result in IGAs with instate and out of state institution of higher learning in addition to a consortium of professional engineering firms.

The final report from this Phase 1 of the project and the methodology will be used be used by Oregon Water Resources Department (“OWRD”) Dam Safety Program staff to evaluate the safety of dams from overtopping failures due to Oregon specific extreme floods.

This project will produce an interim Phase 1 report and propose a plan for completion of the project in Phase

2. The Phase 1 report will include the following:

1. Summarize atmospheric river precipitation mechanics understandable by water resource managers and engineers.

2. Complete methods to analyze…