Contract Number 0000000
State of Oregon
Personal/Professional Services Contract
In compliance with the Americans with Disabilities Act, this document is available
in alternate formats such as Braille, large print, audiotape, oral presentation, and
electronic format. To request an alternate format call the State of Oregon,
Department of Human Services, Office of Forms and Document Management at
(503) 945-7021, Fax (503) 373-7690, or TTY (503) 947-5330.
This Contract is between the State of Oregon, acting by and through its Department
of Human Services, hereinafter referred to as “Department,” and
Contractor
d.b.a. Facility or Assumed Name
Address
Address
Phone number
Fax number
Email address
Contractor’s home page URL, if applicable
hereinafter referred to as "Contractor."
Work to be performed under this Contract relates principally to the Department’s
Seniors and People with Disabilities
Office of Licensing and Quality of Care - Contract RN Program
500 Summer Street NE, E13
Salem, OR 97301-1074
Telephone: 503 / 945-5832
Facsimile: 503 / 378-8966
I.
EFFECTIVE DATE AND DURATION
This Contract shall become effective on the date this Contract has been fully
executed by every party and, when required, approved by Department of
Administrative Services and Department of Justice or on [insert start date] (the
“Effective Date”), whichever date is later. Unless extended or terminated earlier in
accordance with its terms, this Contract shall terminate on [insert end date] (the
“Termination Date”). Hereinafter, the period of time between the Effective Date and
the Termination Date shall be referred to as the “Term” of the Contract. Contract
termination shall not extinguish or prejudice Department’s right to enforce this
Contract with respect to any default by Contractor that has not been cured.
II.
CONTRACT DOCUMENTS
A. This Contract includes and incorporates the exhibits listed below. Hereinafter,
all references to “Contract” shall include all incorporated documents:
1.
2.
3.
4.
5.
6.
Exhibit A:
Exhibit B:
Exhibit C:
Exhibit D:
Exhibit E:
Exhibit F:
Statement of Work
Standard Terms and Conditions
Insurance Requirements
Independent Contractor Certification Statement
Required Federal Terms and Conditions
Contract RN Manual, [fill in date] (“Manual”)
Comment [jfm1]: DOJ is determining
if the attached Exhibit D is the latest
version of the certification for use in DHS
PSKs.
The Manual will be provided to Contractor at the orientation or is available at
the local Department office, Area Agency on Aging office or County
Developmental Disability Program office. The provisions of the Manual shall
only implement this Contract and shall not add new covenants or otherwise alter
or modify the obligations of Contractor or Department. The Manual may be
amended, modified or updated from time to time during the Term of this
Contract. When the Manual is amended, modified or updated, Department will
notify Contractor of such changes and the provisions of the amended, modified
or updated Manual will apply to this Contract. There are no other Contract
documents unless specifically referenced and incorporated in this Contract.
B. This Contract shall be interpreted in the following descending order of
precedence: this Contract less all exhibits, Exhibit E (Federal Provisions),
Exhibit A (Statement of Work), Exhibit B (Standard Terms and Conditions),
Exhibit C (Insurance), Exhibit D (Contractor Certification) and Exhibit F (the
Manual).
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Deleted: but
Formatted: Bullets and Numbering
IV. STATEMENT OF WORK
Contractor shall perform the required services as set forth in the Statement of Work
(“Work”), which is attached hereto as Exhibit A. Contractor shall perform the Work
in accordance with the terms and conditions of this Contract.
III.
CONSIDERATION
A. The maximum, not-to-exceed compensation payable to Contractor under this
Contract, which includes any allowable expenses, is [insert dollar amount].
Department will not pay Contractor any amount in excess of the not-to-exceed
amount for completing the Work, and will not pay for Work performed before
the Effective Date or after the termination of this Contract. If the maximum
compensation is increased by amendment of this Contract, the amendment must
be fully effective before Contractor performs Work subject to the amendment.
B. Subject to the conditions of this paragraph, Department guarantees a minimum
payment to Contractor of one hour at the rate set forth in the Published Rate
Schedule, as that term is defined in OAR 411-048-0010, for the acceptance of
referrals made by the Department or its designee. Contractor agrees to provide
services identified in this Contract to at least one individual referred to
Contractor during the term of this Contract. If Contractor is not due an amount
equal to at least the guaranteed payment amount for services provided as a
result of accepting a referral from Department, Contractor may, within 60 days
following Termination, submit an invoice to Department for payment of an
amount, which when added to any other payment due will total the guaranteed
minimum payment amount. If Contractor fails to submit an invoice to
Department within the required time, Department shall have no further
obligation to Contractor for payment of the guaranteed minimum amount.
Deleted: Services
Deleted: Services
Deleted: Services
Deleted: of the
Deleted: Date
Deleted: or Contractor has not fulfilled
Contractor’s obligation to provide
services to at least one individual referred
to Contractor under this Contract,
C. Payments to Contactor shall be subject to ORS 293.462, and shall be made in
accordance with the requirements and guidelines set forth in Exhibit A.
Deleted: Services
D. Department will pay only for completed Work under this Contract.
E. Contractor shall follow the procedures for submitting claims and invoices for
payment by following the guidelines set forth in the Manual.
IV.
DEPARTMENT’S REPRESENTATIVE
Department’s employee who shall act as agency representative on matters
concerning this Contract is:
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[Fill in Name]
Contract RN Service Coordinator
Office of Licensing and Quality of Care
Seniors and People With Disabilities
500 Summer Street NE, E13
Salem, Oregon 97301
V.
CONTRACTOR DATA AND CERTIFICATION
A. Contractor Tax Identification and Insurance Information. Contractor shall
provide Contractor’s Social Security number or Contractor’s federal tax ID
number and the additional information set forth below. This information is
requested pursuant to ORS 305.385 and OAR 125-246-0330(2). Social
Security Numbers provided pursuant to this Section will be used for the
administration of state, federal and local tax laws.
Please print and/or type the following information:
Name (exactly as filed with the IRS)___________________________________________
Address__________________________________________________________________
Telephone: (
) _____ - ___________
Facsimile: (
Citizenship (check one): Nonresident alien [ ] YES
) _____ - _____________
[ ] No
Proof of Insurance:
Professional Liability Insurance Company______________________________________
Policy #_______________________ Expiration Date: ____________________________
General Liability Insurance Company__________________________________________
Policy #_______________________ Expiration Date: ____________________________
Oregon Registered Nurse License #: _____________________Expiration Date: ________
Business Designation (check one):
[ ] Professional Corporation [ ] Partnership [ ] Limited Partnership
[ ] Limited Liability Company [ ] Limited Liability Partnership
[ ] Corporation
[ ] Sole Proprietorship [ ] Other ______________________
Social Security # or Federal Tax I.D.# _________________________________________
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Deleted: ¶
B. This Contract shall be interpreted in
the following descending order of
precedence: this Contract less all exhibits,
Exhibit E (Federal Provisions), Exhibit A
(Statement of Work), Exhibit B (Standard
Terms and Conditions), Exhibit C
(Insurance), Exhibit D (Contractor
Certification) and Exhibit F (the Manual).¶
Above Payment, RN License and Insurance information must be provided prior to Contract
approval. Contractor shall provide proof of Insurance upon request by Department or
Department designee. Department may report the information set forth above to the
Internal Revenue Service (IRS) under the name and social security number or taxpayer
identification number provided.
B. Certification: By signature on this Contract, the undersigned hereby certifies under
penalty of perjury that:
1.
2.
3.
4.
The undersigned is authorized to act on behalf of Contractor and that
Contractor is, to the best of the undersigned’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 401.792 to 401.816 (Tax for Emergency
Communications), 118 (Inheritance Tax), 314 (Income Tax), 316 (Personal
Income Tax), 317 (Corporation Excise Tax), 318 (Corporation Income Tax),
320 (Amusement Device and Transient Lodging Taxes), 321 (Timber and
Forestland Tax), 323 (Cigarettes and Tobacco Products Tax), and the elderly
rental assistance program under ORS 310.630 to 310.706; and any local taxes
administered by the Department of Revenue under ORS 305.620;
The number shown in Section V(A) is Contractor's correct taxpayer
identification and all other information provided in Section V(A) is true and
accurate;
Contractor is not subject to backup withholding because:
i.
Contractor is exempt from backup withholding;
ii.
Contractor has not been notified by the IRS that Contractor is subject to
backup withholding as a result of a failure to report all interest or
dividends; or
iii. The IRS has notified Contractor that Contractor is no longer subject to
backup withholding; and
Contractor is an independent contractor as defined in ORS 670.600.
CONTRACTOR, BY EXECUTION OF THIS CONTRACT, HEREBY
ACKNOWLEDGES THAT CONTRACTOR HAS READ THIS CONTRACT,
UNDERSTANDS IT, AND AGREES TO BE BOUND BY ITS TERMS AND
CONDITIONS.
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CONTRACTOR: YOU WILL NOT BE PAID FOR SERVICES RENDERED
PRIOR TO NECESSARY STATE APPROVALS
CONTRACTOR
By: ________________________ Title: _______________________ Date: ___________
Authorized Signature
Department of Human Services
By: ________________________ Title: _______________________ Date: ___________
Authorized Representative
By: _____________________________________________________ Date: ___________
Contracts & Procurement
Local Office
By: ________________________ Title: _______________________ Date: ___________
Authorized Signature
Reviewed by Department Contract Coordinator
By: ________________________ Title: _______________________ Date: ___________
Authorized Signature
Exempt from Legal Sufficiency review pursuant to Exemption dated [Fill in Date].
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EXHIBIT A
Statement of Work
A.
DEFINITIONS
In addition to other terms that are specially defined within this Contract, the
following definitions apply to this Contract:
Deleted: which
1. “Abuse” is defined in ORS 419B.005, ORS 124.050, and ORS 430.735 (1).
2. “Assess” or “Assessment” is defined in OAR 411-048-0010.
3. “Care Coordination Team” means Contractor and the group of all other people
providing services to the Client, including but not limited to physicians,
pharmacists, nurse practitioners, mental health personnel, home health nurses,
hospice nurses, family members, domestic partners and significant others.
4. “Central Office” means the Department’s main office of Seniors and People
with Disabilities, located at 500 Summer Street, NE, Salem Oregon 97301.
5. “Client” means the individual, who resides in a private home, a residential care
facility, an adult foster home or a child foster home for whom Contractor
provides Services pursuant to this Contract.
6. “RN/Client Health Care Plan” (the “Health Care Plan”) is defined in OAR
411-048-0010.
7. “Local Office” means the office or offices from which Contractor receives
referrals for Services and may include one or more of the following: the field
office of the Department, the local Area Agency on Aging office or the County
Developmental Disability Program office.
8. “Services” means all services provided to Clients by Contractor as described in
this Exhibit A.
B.
CONTRACTOR’S DUTIES
Contractor shall perform the Services in accordance with the terms and conditions
identified in this Contract. Contractor shall provide Assessment, care planning,
delegation, teaching, monitoring, consultation and care coordination for eligible
Clients and those who provide care for the Client. Contractor shall not duplicate
Medicare home health nursing activities and shall not provide direct nursing care,
except under certain prior-authorized circumstances, which are more fully described
in the Manual. Under this Contract, Contractor shall not provide paid nursing
Services for any of Contractor’s own family members, including, but not limited to
Contractor’s spouse, child, grandchild, parent, grand parent or sibling. The
Department will provide orientation information and services to Contractor.
Contractor must attend the orientations provided by Department which include the
orientation conducted at the Department’s Central Office and the orientation
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provided by the Local Office. If Contractor is providing Services for Clients who
are served by different Local Offices, they must attend the orientation activities
provided by each Local Office. Contractor must attend the Local Office orientation
activities before providing any Services under this Contract. Contractor may provide
Services prior to receiving the Central Office three-day orientation.
1.
Case Manager Authorization for Services. Department’s Local Office case
managers will submit a referral to Contractor granting authorization to visit
Clients and perform an initial comprehensive Assessment.
a.
b.
c.
d.
e.
2.
Contractor shall follow specific time lines for accepting the referral and
making the Assessment visit, as set forth in the Manual.
If the Contractor and case manager determine that additional nurse
monitoring visits will be made to the Client, Contractor shall develop
the Health Care Plan, and the proposed schedule for visiting the Client
based on the initial Assessment. The case manager must approve the
schedule for visiting the Client before Contractor may commence such
visitations.
Contractor shall review the Health Care Plan with the case manager
who then prior-authorizes nursing Services for Client nurse monitoring
visits for up to six months.
Contractor shall notify the case manager on an on-going basis of
changes in Client condition or care status.
Contractor shall meet with members of the Care Coordination Team,
regarding each individual Client’s respective Health Care Plan as
needed or requested.
Contractor Assessment. Contractor shall visit and Assess Clients in the Clients’
homes, adult foster homes or child foster homes. Contractor shall not provide
nursing Services to their own family members under this Contract.
a.
b.
c.
The Contractor’s Assessment shall address the Client’s physical,
functional, mental, behavioral, and emotional status. In addition,
Contractor shall Assess the environment as it relates to the Client’s
health and safety.
Contractor shall Assess the care provider’s ability to understand and
meet the Client’s health care needs.
Contractor shall Assess the Client’s medications and medication
management system. The medication Assessment includes:
i.
Medication regime, side effects and potential interactions;
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ii.
iii.
iv.
v.
vi.
3.
Medication storage;
P.R.N. parameters, as defined in OAR 851-047-0010(17);
Medication administration;
Medication record documentation; and
Care provider’s knowledge of the medications, actions and
potential side effects.
Health Care Plan. Based on the Assessment, Contractor shall develop and
document a Health Care Plan that addresses the Client’s health care needs and
how Contractor will assist the care provider and Client in meeting the goals of
the Health Care Plan.
Formatted: Bullets and Numbering
Deleted: which
4.
Delegation. Contractor shall provide delegation of nursing tasks of nursing care
to Client care providers in accordance with the Oregon State Board of nursing
OAR Chapter 851, Divisions 47 and 48.
Comment [jfm2]: Any requirement to
have DHS authorization prior to
delegation? The only “authorization”
required in paragraph 1, above, is for
assessments.
5.
Teaching. Following Contractor’s assessment of Client health care needs and
development of the Health Care Plan Contractor shall provide teaching,
including instructions and periodic monitoring, for the Client and care providers
on the subjects set forth below. The teaching includes, but is not limited to, the
provision of instructions on and periodic monitoring of all of the following
subjects as applicable:
Comment [jfm3]: In the CAF RN
Template, Training must be authorized by
DHS. Upon Authorization, Contractor
must conduct the training within 5 days.
a.
b.
c.
d.
e.
f.
g.
Here, Is there any authorization required?
Any time limit for the Contractor to
conduct the teaching?
Disease conditions;
Meeting needs relating to activities of daily living (“ADL”);
Working with Client’s behavioral symptoms;
Performing nursing tasks;
Administering medications;
Preventing deterioration of Client’s health; and
Improving function.
6.
Reassessment. Following significant changes in the Client condition, as
determined by Contractor, Contractor reassesses the Client’s condition and
update the Client’s Health Care Plan.
(Comment) Do not make this change. Although the nurse always reassesses the client at
every visit this is a special Reassessment due to significant change in client condition. The
nurse is able to observe and define the change(s) because of her medical knowledge. The
change(s) necessitate a change to the health care plan which has been written by the
nurse.
Comment [jfm4]: In the CAF
Nursing template, either DHS or the
Contractor can make the determination
that a reassessment be done. In either
case, DHS provides authorization prior to
reassessment.
Here, it looks like Contractor will only do
a reassessment under his/her own
determination, and without approval
required.
Deleted: shall
Formatted
Formatted
Formatted
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C.
D.
7.
Consultation and Coordination with Health professionals. Contractor shall
consult and coordinate the appropriate care for each Client with the Care
Coordination Team, when indicated by the Assessment and Health Care Plan.
8.
Intermittent Provision of Direct Care Nursing Tasks. Contractor shall provide
direct nursing tasks for a Client in accordance with the Manual.
DOCUMENTATION
Contractor shall document all Services within the time frames and on Department
forms found in the Manual (hereinafter “Documentation”).
1.
Nursing Forms. Contractor shall provide copies of completed nursing forms for
the Client home file, the nursing file, and the case manager file.
2.
Documentation to Case Manager. Contractor shall provide completed
Documentation to the case manager prior to billing for Services.
Formatted: Bullets and Numbering
3.
Ownership of Documentation. All Contractor Documentation is the property of
the Department.
Formatted: Bullets and Numbering
4.
Maintenance of File. Contractor shall maintain the Client nursing file in a
confidential manner. When Contractor no longer has a relationship with the
Client, Contractor shall return all Documentation regarding the Client to the
Local Office, as applicable, within ten calendar days.
Formatted: Bullets and Numbering
Comment [jfm5]: This is the extent of
the “confidentiality” language in the
contract, except for HIPAA. (There may
be more on this in the manual.) DOJ is
currently working with DHS to determine
if improved language is warranted here.
DEPARTMENT POLICY GUIDELINES
Contractor shall read and understand the rules, guidelines, manuals and
documentation identified in this Section D. During the Term of this Contract,
Contractor shall take all steps necessary to remain familiar with the rules, guidelines,
manuals, policies and documentation, as they may be updated from time to time,
identified in this Section D.
1.
Contract RN Service Rules. Contractor shall comply with the Contract
Registered Nurse Service Oregon Administrative Rules, OARs 411-048-000
through 411-048-0120, when providing Services under this Contract.
2.
Foster Home Rules. Contractor shall be familiar with, and comply with those
rules that are applicable to the Contractor role in the Adult Foster Home Rules
OAR 411-050-0400 through 411-050-0490. If Contractor is providing Services
in Clackamas County or Multnomah County, the Contractor shall be familiar
with and comply with the Clackamas County or Multnomah County Adult
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Deleted: which
Foster Care Administrative Rules 891-005-100 through 891-400-130, as
applicable.
E.
3.
Nurse Practice Act. Contractor shall comply with Nurse Practice Act ORS
678.010 through 678.135, and Oregon State Board of Nursing (“OSBN”)
administrative rules: 851-031-0060 (renewal of License), 851-045-0000, 851045-0010 through 851-045-0025 (Standards and Scope of Practice for the
Registered Nurse), 851-047-0000 through 851-047-0040 (Delegation to
Unlicensed Persons), and 851-045-0010 through 851-048-0060 (Standards for
provision of Nursing Care by a Designated Care-Giver).
4.
Manual. Contractor shall comply with the provisions, guidelines, rules, policies
and procedures set forth in the most current version of the Manual.
5.
Mandatory Reporting. Contractor shall comply with all statutes relating to the
reporting of Abuse as applicable. Without limitation, the statutes include: ORS
124.050 through 124.095 (elderly abuse); ORS 419B.010 (child abuse); and
ORS 430.735 through 430.765 (abuse of persons who are mentally ill or
developmentally disabled). Contractor shall report to the Local Office any
instances of Abuse that Contractor personally witnesses or instances of Abuse
that Contractor reasonably suspects have occurred against any Client.
Additionally, during the Term of this Contract, Contractor shall report to the
police or the Department any Abuse that Contractor personally witnesses or that
Contractor reasonably suspects has occurred, to any Client, child, elderly
person, adult with developmental disabilities or any adult with mental illness.
PAYMENT PROVISIONS
Contractor shall be compensated for their Services under this Contract according to
the provisions of this Section E. Department shall pay Contractor at the rate set
forth in the Published Rate Schedule, as that term is defined in OAR 411-048-0010,
in effect at the time of service for providing the Services as required by this
Contract.
1.
Minimum Availability. Except as otherwise agreed by the parties in writing,
Contractor shall be available a minimum of 32 hours a month to provide
Services as described in this Contract.
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Deleted: ,
2.
Invoicing. Contractor shall submit invoices to Department according to the
process described in the Manual. Contractor shall not submit invoices for, and
Department will not pay, any amount in excess of the not to exceed amount set
forth in Section IV of this Contract. If this maximum compensation amount is
increased by amendment of this Contract, the amendment must be fully
effective, and all required approvals obtained, before Contractor performs
Services subject to the amendment. No payment will be made for any Services
performed before the beginning date or after the expiration date of this Contract,
as it may be amended from time to time in accordance with its terms.
3.
Billing of Client Related Services. Contractor shall follow the guidelines for
billing for Client Services and orientation activities in the Manual. Contractor
shall bill Department for Client related Services on the CMS 1500 billing form
following training of the billing process. Contractor shall forward the billings
directly to Department’s Forms and Document Management department, at the
address indicated in the Manual for processing. The frequency and amount of
Services provided by Contractor, per Client, shall be authorized by case
managers using the Prior Authorization Guidelines, set forth in the Manual.
4.
Billing for Orientation Activities. Contractor shall use the form SDS 1400RN
Contract RN Orientation Invoice for billing the allowed orientation hours. The
allowed orientation hours are: Local Office orientation, up to four hours; Client
visit orientation with a second Contract RN, up to eight hours (up to 16 hours
allowed in certain specific instances described in the Manual); three day Central
Office Orientation, up to 24 hours; and four hours per month for ongoing
orientation for Local Office coordination activities, team meetings and other
staff related functions. Contractor shall forward the completed, signed invoices
to the Local Office for approval.
Deleted: Department will
5.
Travel. Department reimburses Contractor mileage expenses at the state rate
posted at http://www.dhs.state.or.us/admin/travel only for travel to and from the
Central Office three-day orientation. Lodging for this orientation is reimbursed
at the state rate posted at the website listed above, only if Contractor receives
prior-authorization from the Department’s Office of Licensing and Quality of
Care. Travel expenses are to be billed on the SDS 1400RN invoice form.
Mileage exception payments may be made as per Contract RN Mileage
Exception Guidelines as more fully described in the Manual.
(Comment) Do not put in only as our Exception Guidelines allow for mileage
expenses to be paid in certain circumstances.
6. Transporting Clients. Contractor shall not transport Clients.
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Formatted
7.
F.
General Medicaid Billing Rules. Contractor shall review and follow the general
Medicaid billing rules found in the Medical Assistance Programs rules OAR
Chapter 410, Division 120, as applicable:
a.
Provider Enrollment. OAR 410-120-1260 regarding the agreement to
comply with all applicable rules of the Medical Assistance Program and
federal and state laws and regulations.
b.
Provision Regarding Billing of Clients. OAR 410-120-1280 regarding
the submission of true and accurate information when billing the
Medical Assistance Program.
c.
Timely Submission of Claims. OAR 410-120-1300 regarding time
frames in which Services must be billed.
d.
Authorization of Payment. OAR 410-120-1320 regarding provision of
documentation which supports the authorization and payment of
Services.
e.
Payment. OAR 410-120-1340 regarding payment made only to
Contractor.
f.
Buying Up. OAR 410-120-1350 regarding billing for service when a
non-covered service provided.
g.
Requirements for Financial, Clinical and Other Records. OAR 410120-1360 regarding the Medical Assistance Program’s responsibility
for auditing and verifying the accuracy and appropriateness of payment,
utilization of Services, medical necessity, medical appropriateness, the
quality of care, and access to care. Upon written request, Contractor
shall furnish requested documentation to the Department’s Office of
Medical Assistance Program, the Medicaid Fraud Unit of the
Department of Justice, the Oregon Secretary of State, the Department of
Human Services.
AMENDMENTS
The Department reserves the right to make one or more amendments to the Contract for
the Anticipated Amendments (as defined in OAR 125-246-0560) of increasing the
maximum not-to-exceed compensation of Section III(A) of the Contract. The
Department makes the following findings, as required under OAR 125-2460560(2)(a)(A)(ii):
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1.
The Department may issue an Anticipated Amendment if the Department refers a
greater level of Services to the Contractor than originally contemplated in
establishing the not-to-exceed compensation of this Contract.
2.
To finalize the details and costs of the Anticipated Amendment, the Department
will increase the maximum not-to-exceed compensation to sufficiently cover
additional Contractor Services at the rate defined in the Contract.
3.
The Department anticipates, but is not able to necessarily quantify at the time of
Contract execution that there may be a greater quantity of Services referred to
the Contractor based on an increased need for Services by Clients, or a shortage
of available nurses in the Contractor’s area to perform the Services needed by
Clients.
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Deleted: budgeted
Deleted: extra
EXHIBIT B
Standard Terms and Conditions
1.
Governing Law, Consent to Jurisdiction
This Contract shall be governed by and construed in accordance with the laws of the
State of Oregon without regard to principles of conflicts of law. Any claim, action,
suit or proceeding (collectively, “Claim”) between DHS or any other agency or
department of the State of Oregon, or both, and Contractor that arises from or relates
to this Contract shall be brought and conducted solely and exclusively within the
Circuit Court of Marion County for the State of Oregon; provided, however, if a
Claim must be brought in a federal forum, then it shall be brought and conducted
solely and exclusively within the United States District Court for the District of
Oregon. In no event shall this section be construed as a waiver by the State of Oregon
of the jurisdiction of any court or of any form of defense to or immunity from any
Claim, whether sovereign immunity, governmental immunity, immunity based on the
eleventh amendment to the Constitution of the United States or otherwise.
CONTRACTOR, BY EXECUTION OF THIS CONTRACT, HEREBY CONSENTS
TO THE IN PERSONAM JURISDICTION OF SAID COURTS.
2.
Compliance with Applicable Law
a.
Contractor shall comply and cause all sub-contractors to comply with all federal,
state and local laws, regulations, executive orders and ordinances applicable to
the Contract or to the performance of Work, as they may be adopted or amended
from time to time.
b.
DHS’ performance under this Contract is conditioned upon Contractor's
compliance with the obligations of contractors under ORS 279B.220, 279B.230
and 279B.235, which are incorporated by reference herein. Contractor shall, to
the maximum extent economically feasible in the performance of this Contract, use
recycled paper (as defined in ORS 279A.010(cc)), recycled PETE products (as
defined in ORS 279A.010(ff)), and other recycled plastic resin products and
recycled products (as “recycled product” is defined in ORS 279A.010(gg).
c.
In compliance with the Americans with Disabilities Act, any written material that is
generated and provided by Contractor under this Contract to DHS clients,
including Medicaid-Eligible Individuals, shall, at the request of such DHS clients,
be reproduced in alternate formats of communication, to include Braille, large
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print, audiotape, oral presentation, and electronic format. DHS shall not reimburse
Contractor for costs incurred in complying with this provision. Contractor shall
cause all subcontractors under this Contract to comply with the requirements of this
provision.
3.
4.
Independent Contractor
a.
The parties agree and acknowledge that their relationship under this Contract is
that of independent contracting parties and that Contractor is not an officer,
employee, or agent of the State of Oregon as those terms are used in ORS 30.265
or otherwise.
b.
Contractor is responsible for all federal state and local taxes applicable to
compensation or payments paid to Contractor under this Contract and, unless
Contractor is subject to backup withholding, DHS is not required to withhold any
amounts from such compensation or payments to cover Contractor’s federal, state
or local tax obligations. Contractor is not eligible for any federal Social Security,
unemployment insurance or workers’ compensation benefits from compensation
or payments paid to Contractor under this Contract, except as a self-employed
individual.
Representations and Warranties
a.
Contractor’s Representations and Warranties. Contractor represents and warrants
to DHS that:
(i)
(ii)
(iii)
(iv)
(v)
(vi)
Contractor is qualified to do business in the State of Oregon and has the
authority to enter into and perform this Contract,
Contract constitutes a valid and binding obligation of Contractor
enforceable in accordance with its terms,
Work will be performed in a timely, professional and workmanlike manner
by qualified personnel in accordance with applicable professional
standards,
Contractor shall, at all times during the term of this Contract, be qualified,
professionally competent, and duly licensed to perform the Work,
Contractor prepared its proposal related to this Contract, if any,
independently from all other proposers, and without collusion, fraud, or
other dishonesty,
Contractor is not in violation of, charged with nor, to the best of
Contractor’s knowledge, under any investigation with respect to violation
Page 16
of, any provision of any federal, state or local law, ordinance or regulation
or any other requirement or order of any governmental or regulatory body
or court or arbitrator applicable to provision of the Work, and Contractor’s
provision of the Work shall not violate any such law, ordinance, regulation
or order,
(vii) Neither Contractor nor any individual with an ownership interest in
Contractor has been convicted of any criminal offense related to any
program under Title XVIII, Title XIX or SSBG,
(viii) If Contractor is currently employed by the State of Oregon or the Federal
Government, Contractor’s performance under this Contract creates no
potential or actual conflict of interest as defined by ORS Chapter 244 and,
no rules or regulations of Contractor’s employing agency (state or federal)
would prohibit Contractor’s activities under this Contract, and
(ix) Contractor has no interest, and will not acquire any interest, direct or
indirect, that would conflict with its performance under this Contract.
b.
Warranties cumulative. The warranties set forth in this section are in addition to,
and not in lieu of, any other warranties provided.
5.
Time is of the Essence
Contractor agrees that time is of the essence under this Contract.
6.
Funds Available and Authorized; Payments
Contractor shall not be compensated for Work performed under this Contract by any
other agency or department of the State of Oregon. DHS certifies that it has sufficient
funds currently authorized for expenditure to finance the costs of this Contract within
DHS’ current biennial appropriation or limitation. Contractor understands and agrees
that DHS’ payment for Work performed is contingent on DHS receiving
appropriations, limitations, allotments or other expenditure authority sufficient to
allow DHS, in the exercise of its reasonable administrative discretion, to continue to
make payments under this Contract.
7.
Recovery of Overpayments
If billings under this Contract, or under any other contract between Contractor and
DHS, result in payments to Contractor to which Contractor is not entitled, DHS, after
giving written notification to Contractor, may withhold from payments due to
Contractor such amounts, over such periods of time, as are necessary to recover the
amount of the overpayment.
8.
Ownership of Work Product
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All work products, including reports, files, documents and other materials which are
delivered to DHS pursuant to this Contract (“Work Products”) are the exclusive
property of DHS. DHS and Contractor intend that such Work Products be deemed
“works made for hire” of which DHS is deemed the author. If for any reason any such
Work Products is not deemed “works made for hire,” Contractor hereby irrevocably
assigns to DHS all of its right, title and interest in and to any and all such Work
Products, whether arising from copyright, patent, trademark, trade secret, or any other
state or federal intellectual property law or doctrine. Contractor forever waives any
and all rights relating to such Work Products, including 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 or the
development of derivative works. Contractor shall execute such documents and
instruments as DHS may reasonably request in order to record or perfect the
assignments required under this Section 8 and to fully vest such rights in DHS. In the
event any right (including without limitation, any moral right) in such Work Products
cannot be assigned, Contractor hereby waives enforcement anywhere in the world of
such right against DHS and exclusively licenses such right to DHS.
9.
Indemnity
a.
GENERAL INDEMNITY. CONTRACTOR SHALL DEFEND, SAVE,
HOLD HARMLESS, AND INDEMNIFY THE STATE OF OREGON AND
DHS AND THEIR OFFICERS, EMPLOYEES AND AGENTS FROM AND
AGAINST ALL CLAIMS, SUITS, ACTIONS, LOSSES, DAMAGES,
LIABILITIES, COSTS AND EXPENSES OF ANY NATURE
WHATSOEVER, INCLUDING ATTORNEYS FEES, RESULTING FROM,
ARISING OUT OF, OR RELATING TO THE ACTIVITIES OF
CONTRACTOR OR ITS OFFICERS, EMPLOYEES, SUBCONTRACTORS,
OR AGENTS UNDER THIS CONTRACT.
b.
INDEMNITY FOR INFRINGEMENT CLAIMS. WITHOUT LIMITING
THE GENERALITY OF SECTION 9(a), CONTRACTOR EXPRESSLY
AGREES TO DEFEND, INDEMNIFY, AND HOLD DHS, THE STATE OF
OREGON AND THEIR AGENCIES, SUBDIVISIONS, OFFICERS,
DIRECTORS, AGENTS, AND EMPLOYEES HARMLESS FROM ANY
AND ALL CLAIMS, SUITS, ACTIONS, LOSSES, LIABILITIES, COSTS,
EXPENSES, INCLUDING ATTORNEYS FEES, AND DAMAGES
ARISING OUT OF OR RELATED TO ANY CLAIMS THAT THE WORK,
THE WORK PRODUCT OR ANY OTHER TANGIBLE OR INTANGIBLE
ITEMS DELIVERED TO DHS BY CONTRACTOR THAT MAY BE THE
SUBJECT OF PROTECTION UNDER ANY STATE OR FEDERAL
Page 18
INTELLECTUAL PROPERTY LAW OR DOCTRINE, OR DHS’ USE
THEREOF, INFRINGES ANY PATENT, COPYRIGHT, TRADE SECRET,
TRADEMARK, TRADE DRESS, MASK WORK, UTILITY DESIGN, OR
OTHER PROPRIETARY RIGHT OF ANY THIRD PARTY; PROVIDED,
THAT THE STATE OF OREGON SHALL PROVIDE CONTRACTOR
WITH PROMPT WRITTEN NOTICE OF ANY INFRINGEMENT CLAIM.
c.
CONTROL OF DEFENSE AND SETTLEMENT. CONTRACTOR SHALL
HAVE CONTROL OF THE DEFENSE AND SETTLEMENT OF ANY
CLAIM THAT IS SUBJECT TO THIS SECTIONS 9(a) OR 9(b);
HOWEVER, NEITHER CONTRACTOR NOR ANY ATTORNEY
ENGAGED BY CONTRACTOR SHALL DEFEND THE 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
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 SHALL CONTRACTOR 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 CONTRACTOR 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.
10. Default; Remedies; Termination
a.
Default by Contractor. Contractor shall be in default under this Contract if:
(i)
(ii)
Contractor institutes or has instituted against it insolvency, receivership
or bankruptcy proceedings, makes an assignment for the benefit of
creditors, or ceases doing business on a regular basis; or
Contractor no longer holds a license or certificate that is required for
Contractor to perform its obligations under the Contract and Contractor
has not obtained such license or certificate within fourteen (14) calendar
days after DHS’ notice or such longer period as DHS may specify in
such notice; or
Page 19
(iii)
b.
Contractor commits any material breach or default of any covenant,
warranty, obligation or agreement under this Contract, fails to perform
the Work under this Contract within the time specified herein or any
extension thereof, or so fails to pursue the Work as to endanger
Contractor's performance under this Contract in accordance with its
terms, and such breach, default or failure is not cured within 14
calendar days after DHS’ notice, or such longer period as DHS may
specify in such notice.
DHS’ Remedies for Contractor’s Default. In the event Contractor is in default
under Section 10(a), DHS may, at its option, pursue any or all of the remedies
available to it under this Contract and at law or in equity, including, but not
limited to:
(i)
(ii)
(iii)
(iv)
Termination of this Contract under Section 10(e)(ii);
Withholding all monies due for Work and Work Products that
Contractor has failed to deliver within any scheduled completion dates
or has performed inadequately or defectively;
Initiation of an action or proceeding for damages, specific performance,
or declaratory or injunctive relief;
Exercise of its right of recovery of overpayments under Section 7 of
this Contract or setoff, or both.
These remedies are cumulative to the extent the remedies are not inconsistent,
and DHS may pursue any remedy or remedies singly, collectively,
successively or in any order whatsoever. If a court determines that Contractor
was not in default under Section 10(a), then Contractor shall be entitled to the
same remedies as if this Contract was terminated pursuant to Section 10(e)(i).
c.
Default by DHS. DHS shall be in default under this Contract if DHS commits
any material breach or default of any covenant, warranty, or obligation under
this Contract, and such breach or default is not cured within thirty (30)
calendar days after Contractor’s notice or such longer period as Contractor
may specify in such notice.
d.
Contractor’s Remedies for DHS’ Default. In the event DHS terminates the
Contract under Section 10(e)(i), or in the event DHS is in default under
Section 10(c) and whether or not Contractor elects to exercise its right to
terminate the Contract under Section 10(e)(iii), Contractor’s sole monetary
remedy shall be (i) with respect to Work compensable at a stated rate, a claim
Page 20
for unpaid invoices, time worked within any limits set forth in this Contract
but not yet invoiced, authorized expenses incurred and interest within the
limits permitted under ORS 293.462, and (ii) with respect to deliverable-based
Work, a claim for the sum designated for completing the deliverable
multiplied by the percentage of Work completed and accepted by DHS, less
previous amounts paid and any claim(s) that DHS has against Contractor. In
no event shall DHS be liable to Contractor for any expenses related to
termination of this Contract or for anticipated profits. If previous amounts
paid to Contractor exceed the amount due to Contractor under this Section
10(d), Contractor shall immediately pay any excess to DHS upon written
demand. If Contractor does not immediately pay the excess, DHS may
recover the overpayments in accordance with Section 7, Recovery of
Overpayments, and may pursue any other remedy that may be available to it.
e.
Termination
(i)
DHS’ Right to Terminate at its Discretion. At its sole discretion, DHS
may terminate this Contract:
(A) For its convenience upon thirty (30) days’ prior written notice by
DHS to Contractor;
(B) Immediately upon written notice if DHS fails to receive funding,
appropriations, limitations, allotments or other expenditure authority
at levels sufficient to pay for the Work or Work Products;
(C) Immediately upon written notice if federal or state laws, regulations,
or guidelines are modified or interpreted in such a way that DHS’
purchase of the Work or Work Products under this Contract is
prohibited or DHS is prohibited from paying for such Work or Work
Products from the planned funding source; or
(D) Immediately upon written notice to Contractor if there is a threat to
the health, safety, or welfare of any DHS client, including any
Medicaid-Eligible Individual, under its care.
(ii) DHS’ Right to Terminate for Cause. In addition to any other rights and
remedies DHS may have under this Contract, DHS may terminate this
Contract immediately upon written notice by DHS to Contractor, or at
such later date as DHS may establish in such notice, or upon expiration
of the time period and with such notice as provided in Section
10(e)(ii)(B) or Section 10(e)(ii)(C) below, upon the occurrence of any of
the following events:
Page 21
(A) Contractor is in default under Section 10(a)(i) because Contractor
institutes or has instituted against it insolvency, receivership or
bankruptcy proceedings, makes an assignment for the benefit of
creditors, or ceases doing business on a regular basis;
(B) Contractor is in default under Section 10(a)(ii) because Contractor
no longer holds a license or certificate that is required for it to
perform Work under the Contract and Contractor has not obtained
such license or certificate within fourteen (14) calendar days after
DHS’ notice or such longer period as DHS may specify in such
notice; or
(C) Contractor is in default under Section 10(a)(iii) because Contractor
commits any material breach or default of any covenant, warranty,
obligation or agreement under this Contract, fails to perform the
Work under this Contract within the time specified herein or any
extension thereof, or so fails to pursue the Work as to endanger
Contractor's performance under this Contract in accordance with its
terms, and such breach, default or failure is not cured within 14
calendar days after DHS’ notice, or such longer period as DHS may
specify in such notice.
(iii) Contractor’s Right to Terminate for Cause. Contractor may terminate
this Contract with such written notice to DHS as provided in this Section
10(e)(iii), or at such later date as Contractor may establish in such notice,
if DHS is in default under Section 10(c) because DHS commits any
material breach or default of any covenant, warranty, or obligation under
this Contract, fails to perform its commitments hereunder within the time
specified or any extension thereof, and DHS fails to cure such failure
within thirty (30) calendar days after Contractor’s notice or such longer
period as Contractor may specify in such notice.
(iv) Mutual Termination. The Contract may be terminated immediately upon
mutual written consent of the parties or at such other time as the parties
may agree in the written consent.
(v) Return of Property. Upon termination of this Contract for any reason
whatsoever, Contractor shall immediately deliver to DHS all of the DHS’
property (including without limitation any Work Products for which DHS
has made payment in whole or in part) that are in the possession or under
the control of Contractor in whatever stage of development and form of
recordation such DHS property is expressed or embodied at that time.
Upon receiving a notice of termination of this Contract, Contractor shall
Page 22
immediately cease all activities under this Contract, unless DHS
expressly directs otherwise in such notice of termination. Upon DHS’
request, Contractor shall surrender to anyone DHS designates, all
documents, research or objects or other tangible things needed to
complete the Work Products.
11. Limitation of Liabilities
EXCEPT FOR LIABILITY ARISING UNDER OR RELATED TO SECTION 9 OR
SECTION 10(e)(ii), NEITHER PARTY SHALL BE LIABLE FOR INCIDENTAL
OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATED TO THIS
CONTRACT.
12. Insurance
Contractor shall maintain insurance as set forth in Exhibit C, which is attached hereto.
13. Records Maintenance, Access
Contractor shall maintain all financial records relating to this Contract in accordance
with generally accepted accounting principles. In addition, Contractor shall maintain
any other records, books, documents, papers, plans, records of shipments and
payments and writings of Contractor, whether in paper, electronic or other form, that
are pertinent to this Contract, in such a manner as to clearly document Contractor's
performance. All financial records, other records, books, documents, papers, plans,
records of shipments and payments and writings of Contractor whether in paper,
electronic or other form, that are pertinent to this Contract, are collectively referred to
as “Records.” Contractor acknowledges and agrees that DHS and the Secretary of
State's Office and the federal government and their duly authorized representatives
shall have access to all Records to perform examinations and audits and make excerpts
and transcripts. Contractor shall retain and keep accessible all Records for the longer
of: (i) six (6) years following final payment and termination of this Contract; (ii) the
period as may be required by applicable law, including the records retention schedules
set forth in OAR Chapter 166; or (iii) until the conclusion of any audit, controversy or
litigation arising out of or related to this Contract.
14. Force Majeure
Neither DHS nor Contractor shall be held responsible for delay or default caused by
fire, riot, acts of God, power outage, government fiat, terrorist acts or other acts of
political sabotage, civil unrest, labor unrest, or war, where such cause is beyond the
reasonable control of DHS or Contractor, respectively. Contractor shall, however,
make all reasonable efforts to remove or eliminate such a cause of delay or default and
shall, upon the cessation of the cause, diligently pursue performance of its obligations
under this Contract.
Page 23
15. Foreign Contractor
If Contractor is not domiciled in or registered to do business in the State of Oregon,
Contractor shall promptly provide to the Department of Revenue and the Secretary of
State Corporation Division all information required by those agencies relative to this
Contract.
16. Assignment of Contract, Successors in Interest
a.
Contractor shall not assign or transfer its interest in this Contract without prior
written consent of DHS. Any such assignment or transfer, if approved, is
subject to such conditions and provisions as DHS may deem necessary. No
approval by DHS of any assignment or transfer of interest shall be deemed to
create any obligation of DHS in addition to those set forth in the Contract.
b.
The provisions of this Contract shall be binding upon and inure to the benefit
of the parties, their respective successors, and permitted assigns.
17. Subcontracts
Contractor shall not enter into any subcontracts for any of the Work required by this
Contract without DHS’ prior written consent. In addition to any other provisions
DHS may require, Contractor shall include in any permitted subcontract under this
Contract provisions to ensure that DHS will receive the benefit of subcontractor
performance as if the subcontractor were the Contractor with respect to Sections 1, 2,
3, 4, 7, 8, 9, 13, 15, 16, 17 and 18 of this Exhibit B. DHS’ consent to any subcontract
shall not relieve Contractor of any of its duties or obligations under this Contract.
18. No Third Party Beneficiaries
DHS and Contractor are the only parties to this Contract and are the only parties
entitled to enforce its terms. The parties agree that Contractor’s performance under
this Contract is solely for the benefit of DHS to accomplish its statutory mission.
Nothing in this Contract gives, is intended to give, or shall be construed to give or
provide any benefit or right, whether directly, indirectly or otherwise, to third persons
any greater than the rights and benefits enjoyed by the general public unless such third
persons are individually identified by name herein and expressly described as intended
beneficiaries of the terms of this Contract.
19. Amendments; Waiver; Consent
DHS may amend this Contract to the extent provided in the solicitation document, if
any, from which this Contract arose, and to the extent permitted by applicable statutes
and administrative rules. No amendment, waiver, or other consent under this Contract
Page 24
shall bind either party unless it is in writing and signed by both parties and when
required, the Department of Administrative Services and Department of Justice. Such
amendment, waiver, or consent shall be effective only in the specific instance and for
the specific purpose given. The failure of either party to enforce any provision of this
Contract shall not constitute a waiver by that party of that or any other provision.
20. Severability
The parties agree that if any term or provision of this Contract is declared by a court
of competent jurisdiction to be illegal or in conflict with any law, the validity of the
remaining terms and provisions shall not be affected, and the rights and obligations of
the parties shall be construed and enforced as if the Contract did not contain the
particular term or provision held to be invalid.
21. Survival
Sections 1, 3, 4, 6, 7, 8, 9, 10, 11, 13, 18 and 21 of this Exhibit B shall survive
Contract expiration or termination, as well as those provisions of this Contract that by
their context are meant to survive. Contract expiration or termination shall not
extinguish or prejudice DHS’ right to enforce this Contract with respect to any default
by Contractor that has not been cured.
22. Notice
Except as otherwise expressly provided in this Contract, any communications between
the parties hereto or notices to be given hereunder shall be given in writing, by
personal delivery, facsimile, or mailing the same, postage prepaid, to Contractor or
DHS at the address or number set forth in this Contract, or to such other addresses or
numbers as either party may indicate pursuant to this Section 22. Any communication
or notice so addressed and mailed by regular mail shall be deemed received and
effective five (5) days after the date of mailing. Any communication or notice
delivered by facsimile shall be deemed received and effective on the day the
transmitting machine generates a receipt of the successful transmission, if
transmission was during normal business hours, or on the next business day, if
transmission was outside normal business hours of the recipient. Any communication
or notice given by personal delivery shall be effective when actually delivered.
Notwithstanding the foregoing, to be effective against DHS, any notice transmitted by
facsimile must be confirmed by telephone notice to DHS’ Office of Contracts and
Procurement at 503-945-5818 or any such telephone number DHS may provide by
written notice to Contractor. Any communication or notice given by personal delivery
shall be effective when actually delivered to the addressee.
23. Construction
Page 25
The parties agree and acknowledge that the rule of construction that ambiguities in a
written agreement are to be construed against the party preparing or drafting the
agreement shall not be applicable to the interpretation of this Contract.
24. Headings
The headings and captions to sections of this Contract have been inserted for
identification and reference purposes only and shall not be used to construe the
meaning or to interpret this Contract.
25. Merger Clause
This Contract constitutes the entire agreement between the parties on the subject
matter hereof. There are no understandings, agreements, or representations, oral or
written, not specified herein, regarding this Contract.
26. Counterparts
This Contract may be executed in several counterparts, all of which when taken
together shall constitute one agreement binding on all parties, notwithstanding that all
parties are not signatories to the same counterpart. Each copy of the Contract so
executed shall constitute an original.
Page 26
EXHIBIT C
Insurance Requirements
During the term of this Contract, Contractor shall maintain in force at its own expense,
each kind of insurance noted below:
1. ⌧ Required by Department of contractors with one or more workers, as
defined by ORS 656.027.
Workers' Compensation: All employers, including Contractor, that employ
subject workers, as defined in ORS 656.027, shall comply with ORS 656.017 and
shall provide workers' compensation insurance coverage for those workers, unless
they meet the requirement for an exemption under ORS 656.126(2). Contractor
shall require and ensure that each of its subcontractors complies with these
requirements.
2. ⌧ Required by Department
Not required by Department
Professional Liability: insurance with a combined single limit, or the equivalent,
of not less than
$200,000,
$500,000, ⌧ $1,000,000, or
$2,000,000 each
claim, incident or occurrence This is to cover damages caused by error, omission or
negligent acts related to the professional services to be provided under this Contract.
3.
Required by Department ⌧ Not required by Department
General Liability: insurance with a combined single limit, or the equivalent, of
not less than
$200,000,
$300,000,
$1,000,000, or
$2,000,000 each
occurrence for Bodily Injury and Property Damage. It shall provide that the State
of Oregon, Department of Human Service and their divisions, officers and
employees are Additional Insureds but only with respect to the Contractor's services
to be provided under this Contract;
4.
Required by Department ⌧ Not required by Department
Automobile Liability: insurance with a combined single limit, or the
equivalent, of not less than
Oregon Financial Responsibility Law (ORS
806.060),
$100,000,
$500,000, or
$1,000,000 each accident for Bodily
Injury and Property Damage, including coverage for owned, hired or non-owned
vehicles, as applicable.
5. Notice of cancellation or change: There shall be no cancellation, material change,
Page 27
reduction of limits or intent not to renew the insurance coverage(s) without 30 days
prior written notice from the Contractor or its insurer(s) to Department of Human
Services;
6. Certificates of insurance: As evidence of the insurance coverages required by this
Contract, the Contractor shall furnish acceptable insurance certificates to Department of
Human Services upon request. The certificate will specify all of the parties who are
Additional Insureds. Insuring companies or entities are subject to State acceptance. If
requested, complete copies of insurance policies, trust agreements, etc. shall be provided to
the State. The Contractor shall be financially responsible for all pertinent deductibles,
self-insured retentions and/or self-insurance.
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EXHIBIT D
Independent Contractor Certification Statement
This form is to be completed by Contractor; Corporations other than professional
corporations are not required to complete this form.
ORS 670.600 Independent Contractor; standards. As used in various provisions of ORS
chapters 448, 316, 656, 657, 671 and 701, an individual or business entity that performs
labor or services for remunerations shall be considered to perform the labor or services as
an Independent Contractor if the standards of this section are met:
1.
The individual or business entity providing the labor or services is free from
direction and control over the means and manner of providing the labor or services,
subject only to the right of the Department for whom the labor or services are
provided to specify the desired results;
2.
The individual or business entity providing labor or services is responsible for
obtaining all assumed business registrations or professional occupation licenses
required by state law or local government ordinances for the individual or business
entity to conduct the business;
3.
The individual or business entity providing labor or services furnishes the tools or
equipment necessary for performance of the contracted labor or services;
4.
The individual or business entity providing labor or services has the authority to hire
and fire employees to perform the labor or services;
5.
Payment for the labor or services is made upon completion of the performance of
specific portions of the project or is made on the basis of an annual periodic retainer.
6.
The individual or business entity providing labor or service is registered under ORS
chapter 701, if the individual or business entity provides labor or services for which
such registration is required;
7.
Federal and state income tax returns in the name of the business or a business
Schedule C or farm Schedule F as part of the personal income tax return were filed
for the previous year if the individual or business entity performed labor or services
as an independent contractor in the previous year; and
8.
The individual or business entity represents to the public that the labor or services
are to be provided by an independently established business. Except when an
Page 29
individual or business entity files a Schedule F as part of the personal income tax
returns and the individual or business entity performs farm labor or services that are
reportable on Schedule C, an individual or business entity is considered to be
engaged in an independently established business when four or more of the
following circumstances exist. Contractor must meet four (4) or more of the
following:
___A. The labor or services are primarily carried out at a location that is separate from the
residence of an individual who performs the labor or services, or are primarily
carried out in a specific portion of the residence, which portion is set aside as
the location of the business;
___B. Commercial advertising or business cards as is customary in operation of similar
businesses are purchased for the business, or the individual or business entity
has a trade association membership;
___C. Telephone listing and service are used for the business that is separate from the
personal residence listing and service used by an individual who performs the
labor or services;
___D. Labor or services are performed only pursuant to written contracts;
___E. Labor or services are performed for two or more different persons within a period of
one year; or
___F. The individual or business entity assumes financial responsibility for defective
workmanship or for service not provided as evidenced by the ownership of
performance bonds, warranties, errors and omission insurance or liability insurance
relating to the labor or services to be performed.
9.
Pursuant to OAR 125-246-0330(2), Contractor is responsible for federal Social
Security, except those categories excluded by law, and for any federal or state taxes
applicable to the Contract payment.
Contractor certifies by signing this Contract that he/she meets the above standards and
agrees to perform the labor or services required by this contract as an independent
contractor.
Page 30
EXHIBIT E
Required Federal Terms and Conditions
In addition to the requirements of the Special Provisions Section of Exhibit A, Contractor
shall comply and, as indicated, cause all sub-contractors to comply with the following
federal requirements. For purposes of this Contract, all references to federal and state laws
are references to federal and state laws as they may be amended from time to time.
1.
Miscellaneous Federal Provisions
Contractor shall comply and cause all sub-contractors to comply with all federal
laws, regulations, and executive orders applicable to the Contract or to the delivery
of Services. Without limiting the generality of the foregoing, Contractor expressly
agrees to comply and cause all sub-contractors to comply with the following laws,
regulations and executive orders to the extent they are applicable to the Contract: (a)
Title VI and VII of the Civil Rights Act of 1964, as amended, (b) Sections 503 and
504 of the Rehabilitation Act of 1973, as amended, (c) the Americans with
Disabilities Act of 1990, as amended, (d) Executive Order 11246, as amended, (e)
the Health Insurance Portability and Accountability Act of 1996, (f) the Age
Discrimination in Employment Act of 1967, as amended, and the Age
Discrimination Act of 1975, as amended, (g) the Vietnam Era Veterans’
Readjustment Assistance Act of 1974, as amended, (h) all regulations and
administrative rules established pursuant to the foregoing laws, (i) all other
applicable requirements of federal civil rights and rehabilitation statutes, rules and
regulations, (j) all federal law governing operation of Community Mental Health
Programs, including without limitation, all federal laws requiring reporting of Client
abuse. These laws, regulations and executive orders are incorporated by reference
herein to the extent that they are applicable to the Contract and required by law to be
so incorporated. No federal funds may be used to provide Services in violation of 42
USC 14402.
2.
Equal Employment Opportunity
If this Contract, including amendments, is for more than $10,000, then Contractor
shall comply and cause all sub-contractors to comply with Executive Order 11246,
entitled “Equal Employment Opportunity,” as amended by Executive Order 11375,
and as supplemented in Department of Labor regulations (41 CFR Part 60).
3.
Clean Air, Clean Water, EPA Regulations
If this Contract, including amendments, exceeds $100,000 then Contractor shall
comply and cause all sub-contractors to comply with all applicable standards, orders,
or requirements issued under Section 306 of the Clean Air Act (42 U.S.C. 1857(h)),
the Federal Water Pollution Control Act as amended (commonly known as the Clean
Page 31
Water Act) (33 U.S.C. 1251 to 1387), specifically including, but not limited to
Section 508 (33 U.S.C. 1368). Executive Order 11738, and Environmental
Protection Agency regulations (40 CFR Part 15), which prohibit the use under nonexempt Federal contracts, grants or loans of facilities included on the EPA List of
Violating Facilities. Violations shall be reported to Department, HHS and the
appropriate Regional Office of the Environmental Protection Agency. Contractor
shall include and cause all sub-contractors to include in all contracts with subcontractors receiving more than $100,000 in Federal Funds, language requiring the
sub-contractor to comply with the federal laws identified in this section.
4.
Energy Efficiency
Contractor shall comply and cause all sub-contractors to comply with applicable
mandatory standards and policies relating to energy efficiency that are contained in
the Oregon energy conservation plan issued in compliance with the Energy Policy
and Conservation Act (Pub. L. 94-163).
5.
Truth in Lobbying
The Contractor certifies, to the best of the Contractor’s knowledge and belief that:
a.
No federal appropriated funds have been paid or will be paid, by or on behalf of
Contractor, to any person for influencing or attempting to influence an officer or
employee of an agency, a Member of Congress, an officer or employee of
Congress, or an employee of a Member of Congress in connection with the
awarding of any federal contract, the making of any federal grant, the making of
any federal loan, the entering into of any cooperative agreement, and the
extension, continuation, renewal, amendment or modification of any federal
contract, grant, loan or cooperative agreement.
b.
If any funds other than federal appropriated funds have been paid or will be paid
to any person for influencing or attempting to influence an officer or employee
of any agency, a Member of Congress, an officer or employee of Congress, or
an employee of a Member of Congress in connection with this federal contract,
grant, loan or cooperative agreement, the Contractor shall complete and submit
Standard Form LLL, “Disclosure Form to Report Lobbying” in accordance with
its instructions.
c.
The Contractor shall require that the language of this certification be included in
the award documents for all sub-awards at all tiers (including subcontracts,
subgrants, and contracts under grants, loans, and cooperative agreements) and
that all sub-recipients and subcontractors shall certify and disclose accordingly.
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This certification is a material representation of fact upon which reliance was
placed when this Agreement was made or entered into. Submission of this
certification is a prerequisite for making or entering into this Agreement
imposed by section 1352, Title 31, U.S. Code. Any person who fails to file the
required certification shall be subject to a civil penalty of not less than $10,000
and not more than $100,000 for each such failure.
6.
HIPAA Compliance
If the Services funded in whole or in part with financial assistance provided under
this Contract are covered by the Health Insurance Portability and Accountability Act
or the federal regulations implementing the Act (collectively referred to as HIPAA),
Contractor agrees to deliver the Services in compliance with HIPAA. Without
limiting the generality of the foregoing, Services funded in whole or in part with
financial assistance provided under this Agreement are covered by HIPAA.
Contractor shall comply and cause all sub-contractors to comply with the following:
a.
Privacy and Security Of Individually Identifiable Health Information
Individually Identifiable Health Information about specific individuals is
confidential. Individually Identifiable Health Information relating to specific
individuals may be exchanged between Contractor and Department for purposes
directly related to the provision of services to Clients which are funded in whole
or in part under this Contract. However, Contractor shall not use or disclose
any Individually Identifiable Health Information about specific individuals in a
manner that would violate Department Privacy Rules, OAR 410-014-0000 et.
seq., or Department Notice of Privacy Practices, if done by the Department. A
copy of the most recent Department Notice of Privacy Practices is posted on the
Department web site at
http://www.dhs.state.or.us/admin/info_security/priv_forms.htm, or may be
obtained from the Department.
b.
Data Transactions Systems
If Contractor intends to exchange electronic data transactions with the
Department in connection with claims or encounter data, eligibility or
enrollment information, authorizations or other electronic transaction,
Contractor shall execute an EDI Trading Partner Agreement with the
Department and shall comply with the Department EDI Rules.
c.
Consultation and Testing
If Contractor reasonably believes that the Contractor’s or the Department’s data
transactions system or other application of HIPAA privacy or security
compliance policy may result in a violation of HIPAA requirements, Contractor
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shall promptly consult the Department’s HIPAA officer. Contractor or the
Department may initiate a request for testing of HIPAA transaction
requirements, subject to available resources and the Department’s testing
schedule.
7.
Resource Conservation and Recovery
Contractor shall comply and cause all sub-contractors to comply with all mandatory
standards and policies that relate to resource conservation and recovery pursuant to
the Resource Conservation and Recovery Act (codified at 42 USC 6901 et. seq.).
Section 6002 of that Act (codified at 42 USC 6962) requires that preference be given
in procurement programs to the purchase of specific products containing recycled
materials identified in guidelines developed by the Environmental Protection
Agency. Current guidelines are set forth in 40 CFR Parts 247-253.
8.
Audits
Contractor shall comply and, if applicable, cause a sub-contractor to comply, with
the applicable audit requirements and responsibilities set forth in the Office of
Management and Budget Circular A-133 entitled “Audits of States, Local
Governments and Non-Profit Organizations.”
9.
Debarment and Suspension
Contractor shall not permit any person or entity to be a sub-contractor if the person
or entity is listed on the non-procurement portion of the General Service
Administration’s “List of Parties Excluded from Federal Procurement or Nonprocurement Programs” in accordance with Executive Orders No. 12,549 and No.
12,689, “Debarment and Suspension”. (See 45 CFR part 76). This list contains the
names of parties debarred, suspended, or otherwise excluded by agencies, and
contractors declared ineligible under statutory authority other than Executive Order
No. 12549. Sub-contractors with awards that exceed the simplified acquisition
threshold shall provide the required certification regarding their exclusion status and
that of their principals prior to award.
10.
Drug-Free Workplace
Contractor shall comply and cause all sub-contractors to comply with the following
provisions to maintain a drug-free workplace: (i) Contractor certifies that it will
provide a drug-free workplace by publishing a statement notifying its employees that
the unlawful manufacture, distribution, dispensation, possession or use of a
controlled substance, except as may be present in lawfully prescribed or over-thecounter medications, is prohibited in contractor's workplace or while providing
services to the Department Clients. Contractor's notice shall specify the actions that
will be taken by Contractor against its employees for violation of such prohibitions;
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(ii) Establish a drug-free awareness program to inform its employees about: The
dangers of drug abuse in the workplace, contractor's policy of maintaining a drugfree workplace, any available drug counseling, rehabilitation, and employee
assistance programs, and the penalties that may be imposed upon employees for drug
abuse violations; (iii) Provide each employee to be engaged in the performance of
services under this contract a copy of the statement mentioned in paragraph c(i)
above; (iv) Notify each employee in the statement required by paragraph c(i) that, as
a condition of employment to provide services under this contract, the employee
will: abide by the terms of the statement, and notify the employer of any criminal
drug statute conviction for a violation occurring in the workplace no later than five
(5) days after such conviction; (v) Notify the Department within ten (10) days after
receiving notice under subparagraph c(iv) from an employee or otherwise receiving
actual notice of such conviction; (vi) Impose a sanction on, or require the
satisfactory participation in a drug abuse assistance or rehabilitation program by any
employee who is so convicted as required by Section 5154 of the Drug-Free
Workplace Act of 1988; (vii) Make a good-faith effort to continue a drug-free
workplace through implementation of subparagraphs c(i) through c(vi); (viii)
Require any sub-contractor to comply with subparagraphs c(i) through c(vii); c(ix)
Neither Contractor, or any of Contractor's employees, officers, agents or subcontractors may provide any service required under this contract while under the
influence of drugs. For purposes of this provision, "under the influence" means:
observed abnormal behavior or impairments in mental or physical performance
leading a reasonable person to believe the Contractor or contractor's employee,
officer, agent or sub-contractor has used a controlled substance, prescription or nonprescription medication that impairs the Contractor or contractor's employee, officer,
agent or sub-contractor's performance of essential job function or creates a direct
threat to the Department Clients or others. Examples of abnormal behavior include,
but are not limited to: hallucinations, paranoia or violent outbursts. Examples of
impairments in physical or mental performance include, but are not limited to:
slurred speech, difficulty walking or performing job activities; (x) Violation of any
provision of this subsection may result in termination of the contract.
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