Intergovernmental Agreement Guidelines ... - State of Oregon



GUIDELINES FOR USING THE ENTERPRISE STANDARD INTERGOVERNMENTAL AGREEMENT

THE INTERGOVERNMENTAL AGREEMENT WAS CREATED AS PART OF THE ENTERPRISE STANDARD SET OF PROCUREMENT TEMPLATES, FORMS, AND CHECKLISTS. THE PURPOSE OF THIS PROJECT IS TO FOSTER BEST PRACTICE BY ENHANCING EFFICIENCY, MANAGING RISK, AND FACILITATING COST-SAVINGS BY CREATING A STANDARD SET OF PROCUREMENT RELATED TEMPLATES.

SCOPE OF INTENDED USE

1. The Intergovernmental Agreement template is intended solely for use when the State is buying services from a unit of local government in the State of Oregon or a State of Oregon University with an independent governing board.

2. The Intergovernmental Agreement template is not intended to be used in transactions with (a) foreign governments, (b) the federal government, (c) other state governments, (d) local governments in other states, or (e) Indian tribes.

3. The Intergovernmental Agreement template is not intended to be used for (a) transactions in which the State is selling services, (b) financing transactions (e.g., loans, grants), (c) real estate transactions (e.g., leases, acquisitions or dispositions of real property), or (d) information technology transactions or transactions focused on the creation of intellectual property.

4. The Intergovernmental Agreement template does not contemplate subcontracting. If subcontracting is intended or anticipated, Agency must consult with legal counsel, and modify the template as necessary, to address procurement issues, the applicability of provisions of the agreement to subcontractors, and subcontractor indemnification and insurance.

INSTRUCTIONS FOR USE

5. All blanks are to be filled in, including Exhibit A, in accordance with the instructions in the Intergovernmental Agreement template.

6. All highlighted instructions (Notes to Buyers) are to be deleted before execution of the agreement.

7. Add to Exhibit C any terms or conditions unique to the transaction. Such terms and conditions might include confidentiality provisions (see attached Language Library for sample confidentiality language), requirements specific to the agency’s authorizing statutes, or federal requirements applicable to the specific transaction including requirements triggered by federal funding or the nature of the services (e.g., HIPAA).

8. Consider the necessity or desirability of replacing one or more of the provisions in the Intergovernmental Agreement template with a corresponding alternate provision in the Language Library attached to these Guidelines. As noted in the Language Library, many of the alternate provisions are more balanced and, accordingly, less favorable to Agency than the baseline provisions. Only certain baseline provisions have alternates.

9. If Agency will require insurance, the insurance language from the Language Library is to be added to Exhibit B.

10. If the other party to the Agreement is a University, replace Sections 4 (AUTHORIZED REPRESENTATIVES), 8 (GOVERNING LAW, CONSENT TO JURISDICTION), 9 (OWNERSHIP OF WORK PRODUCT), 10 (CONTRIBUTION), 11 (AGENCY DEFAULT), 12 (LOCAL GOVERNMENT DEFAULT), 13 (REMEDIES), 15 (LIMITATION OF LIABILITY), 16 (TERMINATION), and 20 (NOTICE) with the corresponding provisions in the attached language library and add the University Confidential and Nondisclosure provision (also in the attached language library) to Exhibit C.

INTERGOVERNMENTAL AGREEMENT TEMPLATE LANGUAGE LIBRARY

ALTERNATE PROVISIONS THAT REPLACE EXISTING PROVISIONS

1: AUTHORIZED REPRESENTATIVES

[University Authorized Representatives provision]

11. Agency’s Authorized Representative is:

__________________ (insert name)

12. Local Government’s Authorized Representative is:

__________________ (insert name)

1: COMPENSATION AND PAYMENT TERMS

[Fixed Fee for Specified Deliverables]

Agency shall pay Local Government the amounts set forth below for the following specified deliverables:

13. _____________ (insert deliverable and payment amount)

14. _____________ (insert deliverable and payment amount)

Payment will be made after Agency’s acceptance of the specified deliverable and submission of a satisfactory invoice.

1: COMPENSATION AND PAYMENT TERMS

[Hourly Rate Subject to a Cap]

Agency shall pay Local Government at the rate of $ __________ (insert hourly rate of payment) per hour, but not in excess of $ __________ (insert maximum payment amount), for performing the work and delivering the deliverables required of Local Government under this Agreement. Payment will be made monthly, for work performed to Agency’s satisfaction during the prior month, after submission of a satisfactory invoice.

1: COMPENSATION AND PAYMENT TERMS

[Hourly Rate Subject to a Cap for Specified Deliverables]

Agency shall pay Local Government at the rate of $ __________ (insert hourly rate of payment) per hour, but not in excess of the amounts set forth below, for the following specified deliverables:

15. ______________(insert deliverable and maximum payment amount for deliverable)

16. ______________(insert deliverable and maximum payment amount for deliverable)

Payment will be made after Agency’s acceptance of the specified deliverable and submission of a satisfactory invoice.

1: COMPENSATION AND PAYMENT TERMS

[Expense Reimbursement Subject to a Cap]

Agency shall reimburse Local Government, up to but not in excess of $_________ (insert maximum payment amount), for all expenses reasonably and necessarily incurred in performing the work and delivering the deliverables required of Local Government under this Agreement. Payment will be made monthly, for work performed to Agency’s satisfaction during the prior month, after submission of a satisfactory invoice.

REPRESENTATIONS AND WARRANTIES

[Bilateral Representations and Warranties]

17. Local Government represents and warrants to Agency that:

1. Local Government is a ___________ (insert typed of local government/university; e.g., city, county, community college) duly organized and validly existing. Local Government has the power and authority to enter into and perform this Agreement;

2. The making and performance by Local Government of this Agreement (a) have been duly authorized by all necessary action of Local Government, (b) do not and will not violate any provision of any applicable law, rule, regulation, or order of any court, regulatory commission, board, or other administrative agency or any provision of Local Government’s charter or other organizational document and (c) do not and will not result in the breach of, or constitute a default or require any consent under any other agreement or instrument to which Local Government is party or by which Local Government may be bound or affected. No authorization, consent, license, approval of, or filing or registration with or notification to any governmental body or regulatory or supervisory authority is required for the execution, delivery or performance by Local Government of this Agreement, other than those that have already been obtained;

3. This Agreement has been duly executed and delivered by Local Government and constitutes a legal, valid and binding obligation of Local Government enforceable in accordance with its terms;

4. Local Government has the skill and knowledge possessed by well-informed members of the industry, trade or profession most closely involved in providing the services under this Agreement, and Local Government will apply that skill and knowledge with care and diligence to perform its obligations under this Agreement in a professional manner and in accordance with the highest standards prevalent in the related industry, trade or profession; and

5. Local Government shall, at all times during the term of this Agreement, be qualified, professionally competent, and duly licensed to perform its obligations under this Agreement.

18. Agency represents and warrants to Local Government that:

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

2. The making and performance by Agency of this Agreement (a) have been duly authorized by all necessary action of Agency, (b) do not and will not violate any provision of any applicable law, rule, regulation, or order of any court, regulatory commission, board, or other administrative agency and (c) do not and will not result in the breach of, or constitute a default or require any consent under any other agreement or instrument to which Agency is party or by which Agency may be bound or affected. No authorization, consent, license, approval of, or filing or registration with or notification to any governmental body or regulatory or supervisory authority is required for the execution, delivery or performance by Agency of this Agreement, other than those that have already been obtained; and.

3. This Agreement has been duly executed and delivered by Agency and constitutes a legal, valid and binding obligation of Agency enforceable in accordance with its terms.

The representations and warranties set forth in this section are in addition to, and not in lieu of, any other representations or warranties provided.

GOVERNING LAW, CONSENT TO JURISDICTION

[Marion County venue removed. More balanced than the baseline provision]

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 Agency or any other agency or department of the State of Oregon, or both, and Local Government that arises from or relates to this Agreement shall be brought and conducted solely and exclusively within a circuit court of the State of Oregon; provided, however, if a Claim must be brought in a federal forum, then it shall be brought and conducted solely and exclusively within the United States District Court for the District of Oregon. In no event shall this Section be construed as a waiver by the State of Oregon of 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, to or from any Claim or from the jurisdiction of any court. LOCAL GOVERNMENT, BY EXECUTION OF THIS AGREEMENT, HEREBY CONSENTS TO THE IN PERSONAM JURISDICTION OF SAID COURTS.

1: GOVERNING LAW, CONSENT TO JURISDICTION

[University Governing Law and Consent to Jurisdiction provision]

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, suit or action (a “Claim”) between the Parties that arises from or relates to this Agreement shall be brought and conducted solely and exclusively within the jurisdiction of the Circuit Court of Marion County in the State of Oregon. In no event shall this Section be construed as a waiver by the State of Oregon of 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. Each Party hereby consents to the exclusive jurisdiction of such court, waives any objection to venue and waives any claim that such forum is an inconvenient forum.

OWNERSHIP OF WORK PRODUCT

[University Ownership of Work Product provision]

19. As used in this Section 9 and elsewhere in this Agreement, the following terms have the meanings set forth below:

1. "Local Government Intellectual Property" means any intellectual property owned by Local Government and developed independently from any intellectual property in the Work Product. Local Government Intellectual Property includes any derivative works and compilations of any Local Government Intellectual Property that are owned by Local Government.

2. "Third Party Intellectual Property" means any intellectual property owned by parties other than Local Government or Agency and protecting materials in the Work Product. Third Party Intellectual Property includes any derivative works and compilations of any Third Party Intellectual Property.

3. “Agency Intellectual Property” means any intellectual property owned by Agency and developed independently from any intellectual property in the Work Product. Agency Intellectual Property includes any derivative works and compilations of any Agency Intellectual Property that are owned by Agency.

4. “Work Product” means all tangible or digital material that Local Government is required to deliver to Agency under this Agreement.

5. "Work Product Intellectual Property" means any intellectual property in the Work Product.

20. All Work Product Intellectual Property created by Local Government under this Agreement shall be the property of Local Government. Local Government hereby grants to Agency an irrevocable, non-exclusive, perpetual, non-commercial, royalty-free license to use, reproduce, prepare derivative works based upon, distribute copies of, perform and display the Work Product Intellectual Property created by Local Government under this Agreement and to authorize others to do the same for governmental purposes or as otherwise contemplated in this Agreement.

21. All Work Product Intellectual Property created by Agency under this Agreement, shall be the property of Agency. Agency hereby grants to Local Government an irrevocable, non-exclusive, perpetual, non-commercial, royalty-free license to use, reproduce, prepare derivative works based upon, distribute copies of, perform and display the Work Product Intellectual Property created by Agency under the this Agreement and to authorize others to do the same for academic and research purposes.

22. In the event that Work Product is protected by Local Government Intellectual Property, and to the extent necessary to allow Agency to use the Work Product for governmental purposes or as otherwise contemplated in this Agreement, Local Government grants to Agency a royalty-free, non-exclusive, non-commercial and irrevocable license to use, reproduce, prepare derivative works based upon, distribute copies of, perform and display such Local Government Intellectual Property and to authorize others to do the same.

23. In the event that Work Product is protected by Agency Intellectual Property, and to the extent necessary to allow Local Government to use the Work Product for purposes of this Agreement or for research and academic purposes, Agency grants to Local Government a royalty-free, non-exclusive, non-commercial and irrevocable license to use, reproduce, prepare derivative works based upon, distribute copies of, perform and display such Agency Intellectual Property and to authorize others to do the same.

24. In the event that Work Product is known by either Party to contain materials protected by Third Party Intellectual Property, and to the extent necessary for the other Party to use the Work Product for the purposes described in Sections 9.4 or 9.5 (as applicable) (the “Desired Purposes”), the Party that included such materials in the Work Product or required inclusion of such materials in the Work Product, shall either:

1. Secure on the other Party’s behalf a royalty-free, nonexclusive, non-commercial and irrevocable right to use, reproduce, distribute copies of, perform and display such Third Party Intellectual Property and to authorize others to do the same;

2. Remove such materials from the Work Product and re-deliver the Work Product without any materials known by either Party to be protected by Third Party Intellectual Property unlicensed by either Party; or

3. If the options set forth in Sections 9.6.1 and 9.6.2 are not reasonably viable, the Parties shall agree to an equitable reduction in payment due to the inability to use, for the Desired Purposes, the Work Product that contains such material.

Although Local Government will not intentionally include material in the Work Product that is known to be protected by a third party’s patent or trade secret rights if the third party’s rights would interfere with the Agency using the Work Product for State governmental purposes, Local Government makes no warranties that material included in Work Product does not infringe a third party’s patent or trade secret rights.

25. If federal funds are used for the Work Product delivered under this Agreement, the funding federal agency may have certain rights as set forth in the federal requirements pertinent to these funds. For purposes of this subsection, the terms “grant” and “award” refer to funding issued by the federal funding agency to the Agency. Local Government agrees that it has been provided notice that the following may apply:

1. The federal funding agency reserves a royalty-free, nonexclusive and irrevocable right to reproduce, publish, or otherwise use the Work Product, and to authorize others to do so, for Federal Government purposes with respect to:

1. The copyright in any work developed under a grant, subgrant or agreement under a grant or subgrant; and

2. Any rights of copyright to which a grantee, subgrantee or a contractor purchases ownership with grant support.

2. The Parties are subject to applicable federal regulations governing patents and inventions, including government-wide regulations issued by the Department of Commerce at 37 CFR part 401, “Rights to Inventions Made by Nonprofit Organizations and Small Business Firms Under Government Grants, Contracts and Cooperative Agreements.”

3. The Parties are subject to applicable requirements and regulations of the federal funding agency regarding rights in data first produced under a grant, subgrant or agreement under a grant or subgrant.

4. If state or federal law requires that Local Government or Agency grant to the United States a license to any Work Product, or if state or federal law requires that the Agency or United States own the Work Product, then Local Government shall execute such further documents and instruments as Agency may reasonably request in order to make any such grant or to assign ownership in the Work Product to the United States.

26. All rights granted by either Party under this Ownership of Work Product provision are subject to the confidentiality obligations of this Agreement, if any.

INDEMNIFICATION

[Local Government unilateral indemnification of Agency. More favorable to Agency than the baseline provision.]

27. Local Government shall defend, save, hold harmless, and indemnify the State of Oregon and Agency and their officers, employees and agents from and against all claims, suits, actions, losses, damages, liabilities, costs and expenses of any nature whatsoever, including attorney’s fees, resulting from, arising out of, or relating to the activities of Local Government or its officers, employees, subcontractors, or agents under this Agreement.

28. Local Government will have control of the defense and settlement of any claim that is subject to this Section. But neither Local Government nor any attorney engaged by Local Government may defend the claim in the name of the State of Oregon, nor purport to act as legal representative of the State of Oregon or any of its agencies, without first receiving from the Attorney General, in a form and manner determined appropriate by the Attorney General, authority to act as legal counsel for the State of Oregon. Nor may Local Government settle any claim on behalf of the State of Oregon without the approval of the Attorney General. The State of Oregon may, at its election and expense, assume its own defense and settlement in the event that the State of Oregon determines that Local Government is prohibited from defending the State of Oregon, or is not adequately defending the State of Oregon’s interests, or that an important governmental principle is at issue and the State of Oregon desires to assume its own defense.

1: CONTRIBUTION

[University Contribution provision]

29. 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 (a “Third Party Claim”) against a Party (the “Notified Party”) with respect to which the other Party (the “Other Party”) may have liability, the Notified Party shall promptly notify the Other Party in writing of the Third Party Claim and deliver to the Other Party, along with the written notice, a copy of the claim, process and all legal pleadings with respect to the Third Party Claim that have been received by the Notified Party. Each Party is entitled to participate in the defense of a Third Party Claim, and to defend a Third Party Claim with counsel of its own choosing. Receipt by the Other Party of the notice and copies required in this Section are conditions precedent to the Other Party’s contribution obligation under this Section 10 with respect to the Third Party Claim.

30. With respect to a Third Party Claim, each Party shall contribute to the amount of any defense expenses (including attorneys’ fees or costs of litigation), judgments, fines and amounts paid in settlement actually and reasonably incurred and paid or payable by the Party in such proportion as is appropriate to reflect the Parties’ relative fault. Each Party represents that it has amounts lawfully available for the payment of such costs within its risk management fund, insurance coverage or funds otherwise lawfully available for such purpose. Each Party’s relative fault 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. Each Party’s contribution amount shall be for its respective relative fault and payable solely from its risk management fund, insurance or other funds lawfully available for such purpose. The contribution amounts owed to the other Party under this Section 10 shall apply notwithstanding the relevant limits on liability to third parties under the Oregon Tort Claims Act, ORS 30.260 to 30.300.

DEFAULT

[University Default provision.]

A Party will be in default under this Agreement if:

31. the Party commits any material breach or default of any covenant, warranty, obligation or other provision of this Agreement or fails to perform under this Agreement within the applicable time specified in this Agreement; and

32. such breach, default or failure is not cured within 30 days after written notice from the other Party.

[Section Intentionally Blank]

[University Default provision.]

REMEDIES

[Reciprocal remedies. More balanced than the baseline provision.]

33. In the event Local Government is in default under Section 11, Agency may, at its option, pursue any or all of the remedies available to it under this Agreement and at law or in equity, including, but not limited to: (a) termination of this Agreement under Section 16, (b) reducing or withholding payment for work or Work Product that Local Government has failed to deliver within any scheduled completion dates or has performed inadequately or defectively, (c) requiring Local Government to perform, at Local Government’s expense, additional work necessary to satisfy its performance obligations or meet performance standards under this Agreement, (d) initiation of an action or proceeding for damages, specific performance, or declaratory or injunctive relief, or (e) exercise of its right of recovery of overpayments under Section 14 of this Agreement or setoff, or both. These remedies are cumulative to the extent the remedies are not inconsistent, and Agency may pursue any remedy or remedies singly, collectively, successively or in any order whatsoever.

34. In the event Agency is in default under Section 12, Local Government may, at its option, pursue any or all of the remedies available to it under this Agreement and at law or in equity, including, but not limited to: (a) termination of this Agreement under Section 16, or (b) initiation of an action or proceeding for damages, specific performance, or declaratory or injunctive relief. These remedies are cumulative to the extent the remedies are not inconsistent, and Local Government may pursue any remedy or remedies singly, collectively, successively or in any order whatsoever.

1: REMEDIES

[University Remedies provision]

In the event a Party is in default under this Agreement, the other Party may, at its option, pursue any or all of the remedies available to it under this Agreement and at law or in equity, including, without limitation:

35. termination of this Agreement in accordance with Section 16;

36. withholding all monies due under this Agreement;

37. initiation of an action or proceeding for damages, specific performance, or declaratory or injunctive relief;

38. exercise a setoff against any amounts due under this Agreement; and

39. subject to the limitation of liability set forth below, exercise any other remedy available in law or equity and is entitled to recover from the defaulting Party any and all damages arising from the defaulting Party’s default, including any and all costs and expenses of performing the defaulting Party’s unperformed obligations that gave rise to its default.

These remedies are cumulative to the extent the remedies are not inconsistent, and the non-defaulting Party may pursue any remedy or remedies singly, collectively, successively or in any order whatsoever.

1: DISCLAIMER OF WARRANTIES AND LIMITATION OF LIABILITY

[University Limitation of Liability provision]

40. Except as may be expressly provided in this Agreement, the Parties make no express warranties relating to the Intellectual Property (the Agency’s, the Local Government’s or a Third Party’s) or Work Product. The Parties expressly disclaim any and all implied warranties including, but not limited to, the implied warranties of MERCHANTABILITY and fitness for a particular purpose.

41. Except as provided for in Section 10, neither Party shall be liable for:

1. incidental, consequential or other indirect damages; or

2. damages that exceed the amount payable under this Agreement.

These limitations shall survive the termination of this Agreement and apply regardless of whether the claim is based in contract, tort (including negligence), strict liability, product liability or otherwise.

TERMINATION

[University Termination provision]

42. This Agreement may be terminated at any time by mutual written consent of the Parties.

43. Agency may terminate this Agreement as follows:

1. Upon 30 days advance written notice to Local Government;

2. Immediately upon written notice to Local Government, if Agency fails to receive funding, or appropriations, limitations or other expenditure authority at levels sufficient in Agency’s reasonable administrative discretion, to perform its obligations under this Agreement;

3. Immediately upon written notice to Local Government, if federal or state laws, rules, regulations or guidelines are modified or interpreted in such a way that Agency’s performance under this Agreement is prohibited or Agency is prohibited from paying for such performance from the planned funding source;

4. Immediately upon written notice to Local Government, if Local Government is in default under Section 11 this Agreement; or

5. As otherwise expressly provided in this Agreement.

44. Local Government may terminate this Agreement as follows:

1. Immediately upon written notice to Agency, if Local Government fails to receive funding, or appropriations, limitations or other expenditure authority at levels sufficient in Local Government’s reasonable administrative discretion, to perform its obligations under this Agreement;

2. Immediately upon written notice to Agency, if federal or state laws, rules, regulations or guidelines are modified or interpreted in such a way that Local Government’s performance under this Agreement is prohibited or Local Government is prohibited from paying for such performance from the planned funding source;

3. Immediately upon written notice to Agency, if Agency is in default under Section 11 this Agreement; or

4. As otherwise expressly provided in this Agreement.

45. Upon receiving a notice of termination of this Agreement, Local Government will immediately cease all activities under this Agreement, unless Agency expressly directs otherwise in such notice. Upon termination, Local Government will deliver to Agency all documents, information, works-in-progress, Work Product and other property that are or would be deliverables under the Agreement. And upon Agency’s reasonable request, Local Government will surrender all documents, research or objects or other tangible things needed to complete the work that was to have been performed by Local Government under this Agreement.

1: NOTICE

[University Notice provision]

All written notices, requests, demands or other communications to or upon the Parties shall be deemed to have been given: (i) in the case of notice by letter, when delivered by hand or seven (7) calendar days after the same is deposited in the United States Postal Service, first class postage prepaid; or (ii) in the case of notice by electronic mail or telecopier, when sent, receipt confirmed, addressed to the Party as specified below, or at such other address as either Party may designate by written notice to the other Party. Notices shall be sent:

46. if to Local Government to:

(name)

(title)

(address)

(email)

(telecopier no.)

(business phone)

47. if to Agency to:

(name)

(title)

(address)

(email)

(telecopier no.)

(business phone)

with a copy to:

(name)

Title: General counsel

(address)

(email)

(telecopier no.)

(business phone)

INSURANCE REQUIREMENTS TO ADD TO EXHIBIT B

1: REQUIRED INSURANCE

Local Government shall obtain at Local Government’s expense the insurance specified in this Exhibit B, prior to performing under this Agreement, and shall maintain it in full force and at its own expense throughout the duration of this Agreement and any warranty periods that apply, or such longer period as described in the tail coverage provisions below, if those provisions apply. Local Government shall obtain the following insurance from insurance companies or entities that are authorized to transact the business of insurance and issue coverage in the State of Oregon and that are acceptable to Agency. Coverage shall be primary and non-contributory with any other insurance and self-insurance. Local Government shall pay for all deductibles, self-insured retention and self-insurance, if any.

48. WORKERS COMPENSATION AND EMPLOYER’S LIABILITY

All employers, including Local Government, shall provide workers' compensation insurance as required by applicable workers’ compensation laws for persons performing work under this Agreement and shall obtain Employers’ Liability Insurance with limits of not less than $1,000,000 each occurrence. Local Government shall require and ensure that each of its subcontractors complies with these requirements.

49. PROFESSIONAL LIABILITY

Required by Agency Not required by Agency

Professional Liability Insurance covering any damages caused by an error, omission or any negligent acts related to the work to be performed under this Agreement in an amount not less than $1,000,000 per occurrence. Annual aggregate limit shall not be less than $2,000,000. If coverage is on a claim made basis, then either an extended reporting period of not less than 24 months shall be included in the Professional Liability insurance coverage, or Local Government shall provide Tail Coverage as stated below.

50. COMMERCIAL GENERAL LIABILITY

Required by Agency Not required by Agency

Commercial General Liability Insurance covering bodily injury, death and property damage in a form and with coverage that are satisfactory to Agency. This insurance must include personal injury liability, products and completed operations, and contractual liability coverage. Coverage must be written on an occurrence basis in an amount not less than $1,000,000 per occurrence. Annual aggregate limit shall not be less than $2,000,000.

51. AUTOMOBILE LIABILITY INSURANCE

Required by Agency Not required by Agency

Automobile Liability Insurance covering all owned, non-owned, or hired vehicles with a combined single limit of not less than $1,000,000 for bodily injury and property damage.

ADDITIONAL INSURED

The Commercial General Liability insurance and Automobile Liability insurance required under this Agreement must include the State of Oregon, its officers, employees and agents as Additional Insureds but only with respect to Local Government’s activities to be performed under this Agreement.

NOTICE OF CANCELLATION OR CHANGE

Local Government or its insurer shall provide at least 30 days’ written notice to Agency before cancellation of, material change to, potential exhaustion of aggregate limits of, or non-renewal of the required insurance coverages. A failure to comply with the reporting provisions of this clause will constitute a Local Government default under this Agreement and will be grounds for Agency’s immediate termination of this Agreement.

CERTIFICATES AND PROOF OF INSURANCE

Local Government shall provide to Agency a Certificate of Insurance for each required insurance before commencing performance under this Agreement. All Certificates must specify that Local Government shall pay for all deductibles, self-insured retention and self-insurance, if any, and that all coverage is primary and non-contributory with any other insurance and self-insurance, and confirm that either an extended reporting period of at least 24 months is provided on all claims made policies or that tail coverage is provided. Certificates for Commercial Liability insurance and Automobile Liability Insurance must list the State of Oregon, its officers, employees and agents as a Certificate Holder and as Additional Insured. As proof of insurance, Agency has the right to request copies of insurance policies relating to the insurance requirements in this Agreement.

“TAIL” COVERAGE

If any of the required insurance is on a claims made basis and does not include an extended reporting period of at least 24 months, Local Government shall maintain either tail coverage or continuous claims made liability coverage, provided the effective date of the continuous claims made coverage is on or before the effective date of this Agreement, for a minimum of 24 months following the later of (i) Local Government’s completion and Agency’s acceptance of all work required under this Agreement, or (ii) the expiration of all warranty periods provided under this Agreement..

SELF-INSURANCE

Local Government may fulfill its insurance obligations herein through a program of self-insurance, provided that Agency’s determines that Local Government’s self-insurance program complies with all applicable laws, and provides insurance coverage equivalent in both type and level of coverage to that required in this Exhibit A. Notwithstanding Section 7 of this Exhibit A, Local Government shall furnish an acceptable insurance certificate to Agency for any insurance coverage required by this Agreement that is fulfilled through self-insurance.

POSSIBLE ADDITIONAL REQUIREMENTS TO ADD TO EXHIBIT C

1: CONFIDENTIALITY AND NONDISCLOSURE

(Unilateral confidentiality obligations applicable to Local Government)

52. Local Government 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 Agency. Any and all information of any form obtained or provided to Local Government or its officers, directors, employees and agents in the performance of this Agreement is confidential information of Agency (“Confidential Information”). Any reports, summaries, or other documents or items (including software) that result from Local Government’s use of Confidential Information must be treated with respect to confidentiality in the same manner as the Confidential Information. Confidential Information does not to include information that: (i) is or becomes (other than by disclosure by Local Government) publicly known or is contained in a publicly available document, except to the extent that applicable law continues to restrict or prohibit disclosure; (ii) is furnished by Agency to others without restrictions similar to those imposed on Local Government under this Agreement; (iii) is rightfully in Local Government’s possession without the obligation of nondisclosure prior to the time of its disclosure by Agency under this Agreement; (iv) is obtained from a source other than Agency without the obligation of confidentiality; (v) is disclosed with the written consent of Agency; or (vi) is independently developed by Local Government’s officers, directors, employees and agents who can be shown to have had no access to the Confidential Information.

53. Local Government shall hold all Confidential Information in strict confidence, using at least the same degree of care that it uses in maintaining the confidentiality of its own confidential information; shall not copy, reproduce, sell, assign, license, market, transfer or otherwise dispose of, give or disclose Confidential Information to third parties; shall not use Confidential Information for any purposes whatsoever other than as contemplated by this Agreement or reasonably related thereto; and shall advise its officers, directors, employees and agents that receive or have access to Confidential Information of their obligations to keep Confidential Information confidential. These confidentiality obligations do not restrict disclosure of Confidential Information if Local Government can show that any one of the following conditions exists: (i) the disclosure was required to respond to a subpoena or court order duly issued in a judicial or legislative process and Local Government notified Agency of the subpoena or court order at least five days prior to the disclosure, unless such notice could not reasonably be given; or (ii) the disclosure was required to respond to a public records request made under the Oregon Public Records Law, ORS 192.410 to 192.505, and Local Government notified Agency of the public records request at least five days prior to the disclosure.

54. Local Government shall use its best efforts to assist Agency in identifying and preventing any unauthorized use or disclosure of any Confidential Information. Without limiting the generality of the foregoing, Local Government shall advise Agency immediately in the event it 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 Agreement.

55. As requested by Agency, Local Government shall return to Agency, or destroy, all Confidential Information, except that Local Government may retain one archival copy of the Confidential Information as and to the extent required by applicable records retention laws. Nothing in this Agreement is intended to make Local Government a custodian of any record or any information, documents or materials provided by Agency to Local Government.

1: CONFIDENTIALITY AND NONDISCLOSURE

(Bilateral confidentiality obligations applicable to Agency and Local Government)

56. 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. Any and all information of any form provided to a Party or its officers, directors, employees and agents in the performance of this Agreement that reasonably could at the time of its disclosure be understood to be confidential is confidential information of the disclosing Party (“Confidential Information”). Any reports, summaries, or other documents or items (including software) that result from a receiving Party’s use of Confidential Information of the disclosing Party is also Confidential Information of the disclosing Party. Confidential Information does not include information that: (i) is or becomes (other than by disclosure by the receiving Party) publicly known or is contained in a publicly available document, except to the extent that applicable law continues to restrict or prohibit disclosure; (ii) is furnished by the disclosing Party to others without restrictions similar to those imposed on the receiving Party under this Agreement; (iii) is rightfully in the receiving Party’s possession without the obligation of nondisclosure prior to the time of its disclosure by the disclosing Party under this Agreement; (iv) is obtained from a source other than the disclosing Party without the obligation of confidentiality; (v) is disclosed with the written consent of the disclosing Party; or (vi) is independently developed by the receiving Party’s officers, directors, employees and agents who can be shown to have had no access to the Confidential Information of the disclosing Party.

57. The receiving Party shall hold all Confidential Information of the disclosing Party in strict confidence, using at least the same degree of care that it uses in maintaining the confidentiality of its own confidential information; shall not copy, reproduce, sell, assign, license, market, transfer or otherwise dispose of, give or disclose Confidential Information of the disclosing Party to third parties; shall not use Confidential Information of the disclosing Party for any purposes whatsoever other than as contemplated by this Agreement or reasonably related thereto; and shall advise its officers, directors, employees and agents that receive or have access to the Confidential Information of their obligations to keep Confidential Information of the disclosing Party confidential. These confidentiality obligations do not restrict disclosure of Confidential Information if the receiving Party can show that any one of the following conditions exists: (i) the disclosure was required to respond to a subpoena or court order duly issued in a judicial or legislative process and the receiving Party notified the disclosing Party of the subpoena or court order at least five days prior to the disclosure of the disclosing Party’s Confidential Information, unless such notice could not reasonably be given; or (ii) the disclosure was required to respond to a public records request made under the Oregon Public Records Law, ORS 192.410 to 192.505, and the receiving party notified the disclosing Party of the public records request at least five days prior to the disclosure of the disclosing Party’s Confidential Information.

58. The receiving Party shall use its best efforts to assist the disclosing Party in identifying and preventing any unauthorized use or disclosure of Confidential Information of the disclosing Party. Without limiting the generality of the foregoing, the receiving Party shall advise the disclosing Party immediately in the event it learns or has reason to believe that any person who has had access to Confidential Information of the disclosing Party has violated or intends to violate the terms of this Agreement.

59. As requested by the disclosing Party, the receiving Party shall return to the disclosing Party, or destroy, all Confidential Information of the disclosing Party disclosed to the receiving Party, except that the receiving Party may retain one archival copy of the Confidential Information of the disclosing Party as and to the extent required by applicable records retention laws. Nothing in the Agreement is intended to make the receiving Party a custodian of any record or any information, documents or materials provided by the disclosing Party to the receiving Party.

1: CONFIDENTIALITY AND NONDISCLOSURE

(University Confidentiality and Nondisclosure provision)

60. 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. For purposes of this Agreement, “Confidential Information” is:

1. Information in written or other permanent form and clearly and conspicuously marked as proprietary, using an appropriate legend, at the time the disclosing Party discloses it to the receiving Party;

2. Information originally disclosed by the disclosing Party to the receiving Party in some other form (e.g., orally or visually), if the disclosing Party (i) Identifies the information as proprietary at the time of original disclosure, (ii) summarizes the Confidential Information in writing, (iii) marks the writing clearly and conspicuously with an appropriate proprietary legend, and (iv) delivers the writing to the receiving Party within thirty (30) days following the original disclosure.

Confidential Information does not include information that: (i) is or becomes (other than by disclosure by the receiving Party) publicly known or is contained in a publicly available document, except to the extent that applicable law continues to restrict or prohibit disclosure; (ii) is furnished by the disclosing Party to others without restrictions similar to those imposed on the receiving Party under this Agreement; (iii) is rightfully in the receiving Party’s possession without the obligation of nondisclosure prior to the time of its disclosure by the disclosing Party under this Agreement; (iv) is obtained from a source other than the disclosing Party without the obligation of confidentiality; (v) is disclosed with the written consent of the disclosing Party; or (vi) is independently developed by the receiving Party’s officers, directors, employees and agents who can be shown to have had no access to the Confidential Information of the disclosing Party.

61. The receiving Party shall hold all Confidential Information of the disclosing Party in strict confidence, using at least the same degree of care that it uses in maintaining the confidentiality of its own confidential information; shall not copy, reproduce, sell, assign, license, market, transfer or otherwise dispose of, give or disclose Confidential Information of the disclosing Party to third parties; shall not use Confidential Information of the disclosing Party for any purposes whatsoever other than as contemplated by this Agreement or reasonably related thereto; and shall advise its officers, directors, employees and agents that receive or have access to the Confidential Information of their obligations to keep Confidential Information of the disclosing Party confidential. These confidentiality obligations do not restrict disclosure of Confidential Information if the receiving Party can show that any one of the following conditions exists: (i) the disclosure was required to respond to a subpoena or court order duly issued in a judicial or legislative process and the receiving Party notified the disclosing Party of the subpoena or court order at least five days prior to the disclosure of the disclosing Party’s Confidential Information, unless such notice could not reasonably be given; or (ii) the disclosure was required to respond to a public records request made under the Oregon Public Records Law, ORS 192.410 to 192.505, and the receiving party notified the disclosing Party of the public records request at least five days prior to the disclosure of the disclosing Party’s Confidential Information.

62. The receiving Party shall use its best efforts to assist the disclosing Party in identifying and preventing any unauthorized use or disclosure of Confidential Information of the disclosing Party. Without limiting the generality of the foregoing, the receiving Party shall advise the disclosing Party immediately in the event it learns or has reason to believe that any person who has had access to Confidential Information of the disclosing Party has violated or intends to violate the terms of this Agreement.

63. As requested by the disclosing Party, the receiving Party shall return to the disclosing Party all Confidential Information of the disclosing Party disclosed to the receiving Party, except that the receiving Party may retain one archival copy of the Confidential Information of the disclosing Party. Nothing in the Agreement is intended to make the receiving Party a custodian of any record or any information, documents or materials provided by the disclosing Party to the receiving Party.

64. Notwithstanding the above, nothing in this Agreement will be interpreted to bar the Local Government and its faculty from publishing the results of research conducted under this Agreement, consistent with Local Government’s classified and proprietary research policy.

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