HomeMy WebLinkAboutDoc 299 - IGA - Early Learning Div - Funding&~~ Q~< Deschutes County Board of Commissioners
1300 NW Wall St., Suite 200, Bend, OR 97701-1960
(541) 388-6570 -Fax (541) 385-3202 -www.deschutes.org
AGENDA REQUEST & STAFF REPORT
For Board Business Meeting of June 5, 2013
Please see directions for completing this document on the next page.
DATE: May 23,2013
FROM: Hilllary Saraceno CFC/DCHS (541) 317-3178
TITLE OF AGENDA ITEM:
Consideration of Board signature on Document #2013-299, the 2013-15 Intergovernmental Agreement
between the State of Oregon, Early Learning Division and Deschutes County.
PUBLIC HEARING ON THIS DATE? No
BACKGROUND AND POLICY IMPLICATIONS:
This is a master agreement for funding in the 2013-15 biennium between the State of Oregon, Early
Learning Division and Deschutes County.
FISCAL IMPLICATIONS:
This agreement contains the total amount of grant funding from the State of Oregon, Early Learning
Division to Deschutes County, Health Services Early Learning Division. The total amount of the
agreement is $529,245. This agreement increases Healthy Start Funding by $115,001 in the 2013-14
Health Services, Early Learning Division's proposed budget, which was calculated on a six month
estimate (in anticipation of services and funding being transferred to the Early Learning Hub once
established).
In addition, because relief Nursery Funds will be going directly to relief nurseries from the State, this
agreement will also decrease the relief nursery funding by $63,329 (to zero) in the 2013-14 Health
Services, Early Learning Division's proposed budget, which was also calculated based on six months of
funding.
RECOMMENDATION & ACTION REQUESTED:
Approval and signature of the Board of County Commissioners on Document #2013-299, the 2013-15
Intergovernmental Agreement between the State of Oregon, Early Learning Division and Deschutes
County.
ATTENDANCE: Hillary Saraceno
DISTRIBUTION OF DOCUMENTS:
Return the original documents to Hillary Saraceno at Deschutes County Children & Families
Commission, 1130 NW Harriman, Suite A, Bend, OR 97701
DESCHUTES COUNTY DOCUMENT SUMMARY
(NOTE: This fonn is required to be submitted with All contracts and other agreements, regardless of whether the document is to be
on a Board agenda or can be signed by the County Administrator or Department Director. If the document is to be on a Board
agenda, the Agenda Request Fonn is also required. If this fonn is not included with the document, the document will be returned to
the Department. Please submit documents to the Board Secretary tor tracking purposes. and not directly to legal Counsel, the
County Administrator or the Commissioners. In addition to submitting this fonn with your documents, please submit this tonn
electronically to the Board Secretary.)
Please complete all sections above the Official Review line.
Date: [May 23, 201~ Department: ICFq
S stem Directo
Type of Document: Intergovernmental Agreement
Goods and/or Services: This is a master agreement for funding in the 2013-15
biennium between the State of Oregon, Early Learning Division and Deschutes County.
Background & History: This two year agreement is the basis for grant funding and
administrative services provided to Deschutes County Health Services, Early Learning
Division by the Oregon Department of Education, Early Learning Division. This
agreement may be amended when changes to grant streams occur throughout the two
year cycle.
Agreement Starting Date: puly 1, 201~ Ending Date: pune 30, 2015\
Annual Value or Total Payment: 1$529,24§
, I.
D Insurance Certificate Received (check box)
Insurance Expiration Date: N/AI
,t
Check all that apply:
D RFP, Solicitation or Bid Process
D Informal quotes «$150K) I
r;gJ Exempt from RFP, Solicitation or Bid Process (specify -see DCC §2.37) i
I
Funding Source: (Included in current budget? r;gJ Yes D No i
If No, has budget amendment been submitted? DYes D No I
Is this a Grant Agreement providing revenue to the County? r;gJ Yes D No
Special conditions attached to this grant: None
5/24/2013
Deadlines for reporting to the grantor: Quarterly 45 days after the end of the quarter;
November, February, May & August.
If a new FTE will be hired with grant funds, confirm that Personnel has been notified that
it is a grant-funded position so that this will be noted in the offer letter: DYes D No
Departmental Contact and Title: Hillary Saraceno Phone #: (541)
317-3178 .....
Department Director Approval: ~~SP3/~G
Signa re , Dat~
Distribution of Document: Please return all originals to Hillary Saraceno at CFC,
1130 NW Harriman, Ste. A, Send OR 97701.
Official Review:
County Signature Required (check one): []f SOCC 0 Department Director (if <$25K)
o Administrator (if >$25K but <$150K; if >$150K, soee Order No. _____),
Legal Review ~~ ~ Date J -2 J -! 1
Document Number 2013-299
5/24 /2013
OREGON DEPARTMENT OF EDUCATION
EARLY LEARNING DIVISION 2013-2015
COUNTY INTERGOVERNMENTAL AGREEMENT
"Mixed Funds Agreement"
This Early Learning Division 2013-2015 County Intergovernmental Agreement ("Agreement") is
entered into by and between the State of Oregon, acting by and through its Early Learning Division
of the Department of Education ("Agency"), and Deschutes County a political subdivision of the
State of Oregon ("County").
RECITALS
WHEREAS, ORS 417.790, and 417.795, section 4, chapter 519, Oregon Laws 2011 (as
amended by section 3, chapter 37, Oregon Laws 2012), and section 1 of HB 3234 (2013) authorize
Agency to implement and oversee a system of early learning services in Oregon communities to
ensure that children enter school ready to learn;
WHEREAS, section 77, chapter 37, Oregon Laws 2012 (as amended by Section 16 of HB
2013 (2013)), section 24 of HB 2013 (2013), and section 1a of HB 3234 (2013) contemplate that
early learning services will be delivered through the direction of Early Learning Hubs, in
communities served by such hubs, and administered by the Early Learning Council through
Agency, in communities not served by an Early Learning Hub;
WHEREAS, County is not currently served by an Early Learning Hub;
WHEREAS, in order to provide for the delivery of early learning services in County, Agency
desires to enter into this Agreement to provide certain funding to County, under the terms and
conditions hereof, for the delivery of early learning services in County;
WHEREAS, County desires to receive such funding, under the terms and conditions of this
Agreement, for the foregoing purpose;
NOW, THEREFORE, in consideration of the foregoing premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties
hereto agree as follows:
AGREEMENT
1. This Agreement is effective on the later of July 1, 2013 or the date it has been fully executed
by every party and, when required, approved by the Oregon Department of Justice. Unless
extended or terminated in accordance with its terms, this Agreement terminates on June 30,
2015. This Agreement may be extended for additional time, with a maximum term of four
years. Agency will provide to the Contractor written notice of intent to extend the Agreement
in the form of an Amendment.
2. Agreement Documents, Order of Precedence. This Agreement consists of the following
documents, which are listed in descending order of precedence. In the event of a conflict
between two or more of these documents, the language in the document with the highest
precedence shall control, as follows: this agreement less all exhibits, Exhibit A Definition),
Contract # DES1315 Deschutes County Page 1 of 27
DC - 2 a13 -2 9 9
-------------------
-------
-------------------
f
Exhibit 8 (Funding Area Definitions), Exhibit C (Award), Exhibit D (Special Terms and
Conditions), Exhibit E (General Terms and Conditions), Exhibit F (Standard Terms and
Conditions), and Exhibit G (Federal Terms and Conditions). \
E
3. County, by execution of this Agreement, hereby acknowledges County has read this
Agreement, understands it, and agrees to be bound by its terms and conditions.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as
of the dates set forth below their respective signatures.
THE CHAIR, BOARD OF COUNTY COMMISSIONERS (BOCC)
8y:__________________
Name:
Alan Unger, Chair
Title: Deschutes County Board of Commissioners
Date:
OTHER COUNTY COMMISSIONER DELEGATE
8y:___________________
Name: Tammy Baney~
Title: Deschutes County Board of Commissioners
Date:___________________
OTHER COUNTY COMMISSIONER DELEGATE
8y:__________________
Name: Anthony DeBone __________
Title: Deschutes County Board of Commissioners
Date:
STATE OF OREGON ACTING BY AND THROUGH
ITS OREGON DEPARTMENT OF EDUCATION
8y:__________________
Name:__________________
Title:__________________
Date:_________________
DEPARTMENT OF JUSTICE
Approved for Legal Sufficiency (ORS 291.047)
Contract # DES1315 Deschutes County Page 2 of 27
EXHIBIT A
DEFINITIONS
As used in this Agreement, the following words and phrases shall have the indicated meanings.
1. "Activity" means an activity falling within a Funding Area, whose costs are covered in whole
or in part with financial assistance Agency pays to County pursuant to this Agreement.
2. "Agency" has the meaning set forth in the first paragraph of this Agreement.
3. "Agreement" means this Oregon Department of Education, Early Learning Division 2013
2015 County Intergovernmental Agreement.
4. "Allowable Costs" means those costs deemed reasonable (Reasonable Cost, 2 CFR Part
225 (C)(2)(a» and necessary for the State to administer and deliver the services as provided
in the implementation of the Cost Allocation Plan as determined in accordance with Office of
Management and Budget Circulars A-87 (2 CFR PART 225) and A-122, as revised from time
to time.
5. "Claim" has the meaning set forth in Section 4 of Exhibit F.
6. "County" has the meaning set forth in the first paragraph of this Agreement.
7. "Cost Allocation Plan" means the State plan submitted to Department of Health and Human
Services for each year the State claims central service costs under Federal awards, as set
forth in Appendix C to Part 225-State/Local wide Central Service Cost Allocation Plans).
8. "Department of Health and Human Services or DHHS" means the Federal Department of
Health and Human Services
t
9. "Federal Funds" means the funds paid to County under this Agreement that Agency receives
from the Department of Health and Human Services, or another instrumentality or program of
the federal government of the United States. I
I
1O. "Funding Area" means anyone of the areas enumerated and further described in Exhibit B.
I
f
11. "Funding Area Description" means the description of a Funding Area set forth in Exhibit B.
12. "Misexpenditure" has the meaning set forth in Section 1 of Exhibit E. f
J
13. "Plan" means the most recently adopted local coordinated comprehensive plan for County. I
14. "Provider' has the meaning set forth in section 5 of Exhibit E. As used in a Funding Area IDescription, Provider also includes County if County conducts an Activity within that Funding
Area directly.
15. "Underexpenditure" has the meaning set forth in section 1 of Exhibit E.
Contract # DES1315 Deschutes County Page 30f27
EXHIBIT B
FUNDING AREA DESCRIPTIONS
A. Funds for the following Funding Area are included in this Agreement as of the effective date of
this Agreement.
1. Healthy Start. Healthy Start activities are described in OAR 423-010-0024(6) and OAR
423-045-0015.
B. Funds for the following Funding Areas may be amended into this Agreement, depending on
legislative action.
1 . Great Start. Great Start activities are described in OAR 423-01 0-0024( 1 ).
2. Children, Youth and Families. Children, Youth and Families activities are described in
OAR 423-010-0024(3).
3. Family Support Services. Family Support activities are described in OAR 423-010
0024(7).
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Contract # DES1315 Deschutes County Page 4 of27
EXHIBIT C
AWARD
FUNDING AREA GENERAL FUND FEDERAL FUNDS CFDANUMBER
1. Healthy Start
1$529,245 :$ $
EXPLANATION OF AWARD
The Award set forth above reflects the maximum amount of financial assistance Agency will
provide to County under this Agreement in support of Activities in the specified Funding Area. The
CFDA (Catalog of Federal Domestic Assistance) Number specifies the source of federal funds as
follows: CFDA Number 93.667 specifies Title XX, Social Service Block Grant, funds.
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Contract # DES1315 Deschutes County Page 50f27
THE EARLY LEARNING DIVISION 2013·2015
COUNTY INTERGOVERNMENTAL AGREEMENT
[PLACEHOLDER]
FUNDING AREA
1. Great Start
GENERAL FUND FEDERAL FUNDS ,
$ $
CFDANUMBER
$
I 2. Children Youth & Families i $
$ + I 3. Family Support Services I
I $ $ $
i
I
EXPLANATION
For a description or OAR for the above funding see Exhibit B.
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Contract # DES1315 Deschutes County Page 6 of 27
EXHIBIT D
SPECIAL TERMS AND CONDITIONS
1. Special Restrictions on Expenditure of Award. In addition to any other restriction or
limitation on County's expenditure of financial assistance, County may expend financial
assistance provided under this Agreement only in accordance with the limitations set forth in
OAR 423-010-0040 and 423-010-0027(2) and, with respect to Activities within a specific
Funding Area, the limitations set forth in OAR 423-010-0023 and 423-010-0024. County may
not expend financial assistance provided under this Agreement in excess or contravention of
the foregoing limits.
2. Carryover. Notwithstanding Section 1 of Exhibit E, if authorized by Agency in writing in
accordance with OAR 423-010-0027, County may retain and expend in accordance with OAR
423-010-0027(5)(a)(b)(c) financial assistance disbursed to County under this Agreement that
is not expended at Agreement termination. All financial assistance retained by County in
accordance with this section not expended within 90 days after the termination of this
Agreement shall be deemed an Under expenditure subject to recovery under Section 1 of
Exhibit E.
3. Reporting. County shall submit reports to Agency as required by OAR 423-010-0027(7-9).
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Contract # DES1315 Deschutes County Page 7of27
EXHIBIT E
GENERAL TERMS AND CONDITIONS
1. Disbursement, Use and Recovery of Award.
a. Disbursement and Use Generally. Subject to the conditions precedent set forth
below, Agency shall disburse the financial assistance described in the Award to County in
accordance with OAR 423-010-0027(1) on an expense reimbursement basis or, at Agency's
discretion, in periodic proportional allotments. The mere disbursement of financial assistance
to County does not vest in County any right to retain those funds. Disbursements not provided
on an expense reimbursement basis are considered an advance of funds to County which
County may retain only if properly expended, in accordance with terms and conditions of this
Agreement.
b. Conditions Precedent to Disbursement. Agency's obligation to disburse financial
assistance to County under this Agreement is subject to satisfaction, with respect to each
disbursement, of each of the following conditions precedent:
(i) Agency has received sufficient funding, appropriations and other expenditure
authorizations to allow Agency, in the exercise of its reasonable administrative
discretion, to make the disbursement.
(ii) No default as described in Section 8 of this Exhibit has occurred.
(iii) County's representations and warranties set forth in Section 2 of this Exhibit are true
and correct on the date of disbursement with the same effect as though made on the
date of disbursement.
c. Recovery of Award.
(i) Notice of Underexpenditure or Misexpenditure. In the event of an
Underexpenditure or a Misexpenditure (each as defined below) of any moneys disbursed
to County under this Agreement, Agency and County shall engage in the process
described in this Section 1.c to determine the appropriate amount that Agency may
recover from County, and the appropriate method for implementing such recovery. For
purposes of this Section I.c, an "Underexpenditure" means money disbursed to County
by Agency under this Agreement that has not been expended by County at Agreement
termination, other than money, if any, that County is expressly permitted to retain and
expend in the future under other provisions of this Agreement, and "Misexpenditure"
means money disbursed to County by Agency under this Agreement and expended by
County that:
(a) Is identified by the federal government as expended contrary to applicable
statutes, rules, OMS Circulars or any other authority that governs the permissible
expenditure of such money, for which the federal government has requested
reimbursement by the State of Oregon; or
(b) Is identified by the State of Oregon or Agency as expended in a manner other
than that permitted by this Agreement, including without limitation, any money
Contract # DES1315 Deschutes County Page 8 of27
expended by County, contrary to applicable statutes, rules, OMB Circulars or any
other authority that governs the permissible expenditure of such money; or
(c) Is identified by the State of Oregon or Agency as expended on an Activity that did
not meet the standards and requirements of this Agreement with respect to that
Funding Area.
f
(d) The term "Misexpenditure" does not include any County payments or I
expenditures that are: i
(A) Made pursuant to Oregon Administrative Rules; I
(B) Made with Agency's written direction or approval; or I(C) Consistent with the Plan.
(e) If County payments or expenditures are later determined to be impermissible
due to a subsequent modification of applicable statutes, federal rules, OMB Circulars I
or any other authority not listed in Section 1.c (i)(d) above that governs the
expenditures of such monies by County, the parties agree to meet and negotiate in
good faith an appropriate apportionment of responsibility for the repayment of the
impermissible payments or expenditures.
In the event of a Underexpenditure or a Misexpenditure, Agency shall provide to County
notice thereof.
(ii) County·s Response. From the date of County's receipt of the notice of
Underexpenditure or Misexpenditure, County shall have the lesser of (i) 90 calendar
days, or (ii) if an Underexpenditure or Misexpenditure relates to a federal government
request for reimbursement, 30 calendar days fewer than the number of days (if any) the
Agency has to appeal a final written decision from the federal government, to either:
(a) Make a payment to the Agency in the full amount of the Underexpenditure or
Misexpenditure identified by the Agency; or
(b) Notify the Agency that County wishes to repay the amount of the IUnderexpenditure or Misexpenditure from future payments pursuant to Section 1.c(iv)
below; or I
(c) Notify the Agency that it wishes to engage in the applicable appeal process set Iforth in Section I.c (iii) below. ,
The Agency shall not require County to perform additional services to be paid from a
Underexpenditure. If County fails to respond within the time required under Section i !
1.c(ii) above, Agency may recover the amount of the Underexpenditure or ~:
Misexpenditure from future payments as set forth in Section 1'.c(iv) below.
(iii) Appeals Process. If County notifies Agency that it wishes to engage in an appeal
process with respect to a noticed Underexpenditure or Misexpenditure, the parties shall
comply with the following procedures, as applicable:
Contract # DES1315 Deschutes County Page 9 of 27
(a) Appeal from Agency-Identified Underexpenditure or Misexpenditure. If the
Agency's notice of Underexpenditure or Misexpenditure is based on an
Underexpenditure or Misexpenditure other than a Misexpenditure of the type
identified in Section 1.c(i)(a) above, County and the Agency shall engage in non
binding discussions to give the County an opportunity to present reasons why it
believes there is, in fact, no Underexpenditure or Misexpenditure or that the amount
of the Underexpenditure or Misexpenditure is different than the amount identified by
the Agency, and to give the Agency the opportunity to reconsider its notice based on
such presentation and discussion. County and Agency may negotiate an appropriate
apportionment of responsibility for the repayment of an Underexpenditure or
Misexpenditure. In determining an appropriate apportionment of responsibility,
County and Agency may consider any relevant factors. An example of a relevant
factor is the extent to which either party contributed to an interpretation of a statute,
regulation or rule prior to the expenditure that was officially reinterpreted after the
expenditure. If after such discussions Agency and County disagree as to whether or
not there has been an Underexpenditure or Misexpenditure or to the amount thereof,
the parties may agree to consider further appropriate dispute resolution processes,
including, subject to Department of Justice and County Counsel approval, arbitration.
If Agency and County reach agreement on the amount owed to Agency, County shall
promptly repay that amount to Agency by issuing payment to Agency or by directing
Agency to withhold future payments pursuant to I.c.(iv) below. However, the parties
shall not violate federal or state statutes, administrative rules, other applicable
authority, or this Agreement in selecting the method or amount of repayment. If the
parties are unable to reach agreement within a reasonable period of time, Agency
may employ other remedies available under this Agreement or otherwise available at
law or in equity.
(b) Appeal from Federal-Identified Misexpenditures. In the event the notice of
Misexpenditure is based on a federal determination of an improper use of federal
funds or a federal notice of disallowance and the relevant federal agency provides a
process either by statute or administrative rule to appeal the determination of
improper use or notice of disallowance, then County may request that Agency appeal
the determination of improper use or notice of disallowance in accordance with the
process established or adopted by the federal agency. If County so requests that
Agency appeal the determination of improper use of federal funds, federal notice of
disallowance or other federal identi'fication of improper use of funds, the amount in
controversy shall, at the option of the County, be retained by the County or returned
to Agency pending the final federal decision resulting from the initial appeal. County
and Agency shall cooperate with each other in pursuing the appeal. Agency shall
pursue the appeal until a decision is issued by the Departmental Grant Appeals
Board of the Department of Health and Human Services (the "Grant Appeals Board")
pursuant to the process for appeal set forth in 45 C.F.R. Subtitle A, Part 16, or an
equivalent decision is issued under the appeal process established or adopted by the
federal agency. In the event that the Grant Appeals Board or its equivalent denies the
appeal Agency may, in its sole discretion, either pursue further appeals in
cooperation with County, or notify County that it will recover the Misexpenditure from
future payments pursuant to Section1I.c(iv) below. County may choose to pursue any
further appeals that might be available to it, and Agency will participate to the extent it
determines, at its sole discretion, that its further participation is reasonable and
Contract # DES1315 Deschutes County Page 10 of 27
practical. Regardless of any further appeals, within 90 days of the date the federal
decision resulting from the initial appeal is final, County shall repay to Agency the
amount of the noticed Misexpenditure (reduced, if at all, as a result of the appeal) by
issuing payment to Agency or directing Agency to withhold future payments pursuant
to Section I.c.(iv) below. To the extent that County retained any of the amount in
controversy while the appeal was pending, the County shall pay to Agency the
interest, if any, charged by the federal government on such amount.
(iv)Recovery From Future Payments. To the extent Agency is entitled to recover an
Underexpenditure or Misexpenditure from future payments as permitted in this Section
1.c, Agency may recover the Underexpenditure or Misexpenditure by offsetting the
amount thereof against future amounts owed to County by Agency. Agency shall
provide County written notice of its intent to recover the amount of the Underexpenditure
or Misexpenditure from amounts owed County by Agency as set forth in this Section
1.c(iv), and shall identify the amounts owed by Agency which the Agency intends to
offset (including the Agreement or Agreements, if any, under which the amounts owed
arose). County shall then have 14 calendar days from the date of Agency's notice in
which to request the deduction be made from other amounts owed to County by Agency
and identified by County. Agency shall comply with County's request for alternate offset,
unless the County's proposed alternative offset would cause the Agency to violate
federal or state statutes, administrative rules or other applicable authority. In the event
that Agency and County are unable to agree on which specific amounts owed to County
by Agency the Agency may offset in order to recover the amount of the
Underexpenditure or Misexpenditure, then the Agency may select the particular amounts
from which it will recover the amount of the Underexpenditure or Misexpenditure, within
the following limitations: Agency shall first look to amounts owed to County (but unpaid)
under this Agreement. If that amount is insufficient, then Agency may look to any other
amounts currently owing or owed in the future to County by Agency. In no case, without
the prior consent of County. shall the Agency deduct from anyone payment due County
under the Agreement or agreement from which Agency is offsetting funds an amount in
excess of twenty-five percent (25%) of that payment. The Agency may look to as many
future payments as necessary in order to fully recover the amount of the
Underexpenditure or Misexpenditure.
Consistent with Section 1.c.(v)(d), nothing in this Section I.c.(iv) shall cause County to.
violate state or federal constitutions, statutes, regulations, rules or other applicable state or
federal authority.
(v) Additional Provisions related to parties rights/obligations with respect to
Underexpenditures or Misexpenditures.
(a) Agency's right to recover Underexpenditures and Misexpenditures from County
under this Agreement is not subject to or conditioned on County's recovery of any
money from any other entity.
(b) If the exercise of the Agency's right to offset under this provision requires the
County to complete a re-budgeting process, nothing in this provision shall be
construed to prevent the County from fully complying with its budgeting procedures
and obligations, or from implementing decisions resulting from those procedures and
obligations.
Contract # DES1315 Deschutes County Page 11 of27
(c) Nothing in this provision shall be construed as a requirement or agreement by
the County to negotiate and execute any future Agreement with the Agency.
(d) Nothing in this Agreement shall require County or Agency to act in violation of
state or federal law or the Constitution of the State of Oregon.
(e) Nothing in this Section 1.c shall be construed as a waiver by either party of any
process or remedy that might otherwise be available.
(vi) Modification of Award. In the event of a modification in the amount of the Award
pursuant to the terms of this Agreement, Agency shall provide written notice of such
modification to County and provide County with a modified Award. After such notice,
County shall not expend previously disbursed Award moneys in excess of the modified
Award. County shall return any remaining disbursed funds in excess of the modified
Award to the Agency within 90 calendar days of the noticed modification.
2. County Representations. County represents to Agency as follows:
a. Organization and Authority. County is a political subdivision of the State of Oregon
duly organized and validly existing under the laws of the State of Oregon. County has full
power, authority and legal right to make this Agreement and to incur and perform its
obligations hereunder.
b. Due Authorization. The making and performance by County of this Agreement (1)
have been duly authorized by all necessary action of County and (2) 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 County's charter or
other organizational document and (3) 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 County is
a party or by which County or any of its properties may be bound or affected. No
authorization, consent, license. approval of, filing or registration with or notification to any
governmental body or regulatory or supervisory authority is required for ·the execution,
delivery or performance by County of this Agreement.
c. Binding Obligation. This Agreement has been duly executed and delivered by County
and constitutes a legal, valid and binding obligation of County, enforceable in accordance with
its terms subject to the laws of bankruptcy, insolvency, or other similar laws affecting the
enforcement of creditors' rights generally.
d. Accuracy of Information. The statements made in and the information provided in
connection with any applications, requests or submissions to Agency hereunder or in
connection with the financial assistance provided to County hereunder are true and accurate
in all materials respects.
e. Activities. The performance of each Activity will comply with the terms and conditions
of this Agreement and meet the standards for such Activity as set forth herein, including but
not limited to, any terms, conditions, standards and requirements set forth in the Award and
applicable Funding Area Description.
Contract # DES1315 Deschutes County Page 12 of 27
f. Cumulative Representations and Warranties. The representations set forth in this
Section are in addition to, and not in lieu of, any other representations or warranties set forth
in this Agreement or implied by law.
3. Agency Representations. Agency represents to County as follows:
a. Organization and Authority. Agency has full power, authority and legal right to make
this Agreement and to incur and perform its obligations hereunder.
b. Due Authorization. The making and performance by Agency of this Agreement (1) have
been duly authorized by all necessary action of Agency and (2) 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 (3) 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 a party or by which Agency may be bound or affected. No authorization, consent,
license, approval of, 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 approval by the Department of Justice if required by
law.
c. Binding Obligation. 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 subject to the laws of bankruptcy, insolvency, or other similar laws affecting the
enforcement of creditors' rights generally.
d. Cumulative Representations and Warranties. The representations set forth in this
section are in addition to, and not in lieu of, any other representations or warranties provided.
4. Expenditure/Obligation of Award. County may not expend or obligate in excess of 54
percent of the financial assistance provided to County under this Agreement during the first year of
this Agreement without the prior approval of Agency. County may expend the financial assistance
provided to County under this Agreement solely on Allowable Costs necessarily incurred in the
conduct of Activities in implementation of the Plan during the term of this Agreement, subject to the
following limitations (in addition to any other restrictions or limitations imposed by this Agreement,
whether in the applicable Funding Area Descriptions, special conditions identified in the Award, or
otherwise ):
a. County may not expend and shall require all Providers by contract to not expend on any
Activity any financial assistance provided to County under this Agreement in excess of the
amount reasonable and necessary for quality performance of that Activity.
b. County may not expend and shall require all Providers by contract to not expend
financial assistance awarded to County under this Agreement for a particular Funding Area
(as reflected in the Award) on any Activities other than Activities falling within that Funding
Area.
c. County may not use financial assistance provided to County under this Agreement to
reimburse any person or entity for expenditures made, or to pay for goods or services
provided, prior to the effective date of this Agreement.
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Contract # DES1315 Deschutes County Page 13 of27
5. Reports. County shall prepare and deliver to Agency written reports on the expenditure of
the financial assistance provided to County hereunder. The reports shall be prepared and
submitted in accordance with OAR 423-010-0027(7) through (9).
6. Provider Agreements. Except when the Funding Area Description requires Activities falling
within that Funding Area to be provided or conducted by County directly or expressly provided in
the Plan, County may expend financial assistance provided under this Agreement for a particular
Activity to purchase services comprising that Activity from a third person or entity (a "Provider")
through a contract (a "Provider Agreement"). County may permit a Provider to purchase services
comprising an Activity, from another person or entity under a subcontract and such subcontractors
shall also be considered Providers for purposes of this Agreement. County shall not permit any
person or entity to be a Provider unless the person or entity holds all licenses, certificates,
authorizations and other approvals required by applicable law to deliver the services. The Provider
Agreement must be in writing and contain each of the provisions that must be included in a
Provider Agreement under the terms of this Agreement or in order to permit County to comply with
its obligations under this Agreement with respect to the Activities conducted by the Provider.
County shall maintain an originally executed copy of each Provider Agreement at its office and
shall furnish a copy of any Provider Agreement to Agency upon request.
7. Provider Monitoring. County shall monitor the use by Providers of all Award funds
distributed to such Providers. County shall advise all Providers of the requirements applicable to
them and to the use of Award funds under this Agreement, state and federal laws, state and
federal regulations, the provisions of other applicable contracts and any supplemental
requirements imposed by the County. County shall require by contract that Providers comply with
such requirements and satisfy Plan and other program goals related to their Award financing.
County shall monitor relevant activities of Providers to ensure that Award funds are used for
authorized purposes in compliance with such requirements. County shall ensure and require by
contract that Providers which expend $500,000 or more in federal funding during the fiscal year
relevant to this Agreement have a single, comprehensive and independent audit with respect to
such funds for that fiscal year. If findings/recommendations occur from such audits, or from other
audits or other County monitoring with respect to Award funds, County shall issue management
decisions to relevant Providers within 120 calendar days after receipt of such audit reports or
generation of monitoring findings/recommendations and shall ensure that Providers take
appropriate and timely corrective action. County also shall provide copies of such audit and
monitoring findings/recommendations and of corresponding County management decisions to the
Agency within thirty (30) days of County's deadline herein for issuing its respective management
decision.
8. Records Maintenance, Access and Confidentiality.
a. Access to Records and Facilities. The Agency, the Secretary of State's Office of the
State of Oregon, the Federal Government, and their duly authorized representatives shall
have access to the books, documents, papers and records of the County and all Providers
that are directly related to this Agreement, the financial assistance provided hereunder, or any
Activity for the purpose of making audits, examinations, excerpts, copies and transcriptions.
County shall include this provision in all Provider Agreements and require all Providers to
include this provision in all subcontracts. In addition, County shall permit, and require all
Providers by contract to permit, authorized representatives of Agency to perform site reviews
of all Activities of County or of Provider.
Contract # DES1315 Deschutes County Page 14 of 27
b. Retention of Records. County shall retain and keep accessible and require all
Providers by contract to retain and keep accessible all books, documents, papers, and
records, that are directly related to this Agreement, the financial assistance provided
hereunder or any Activity, for a minimum of three (3) years, or such longer period as may be
required by other provisions of this Agreement or applicable law, following the termination of
this Agreement. If there are unresolved audit or other questions at the end of the three-year
period, County shall retain the records until the questions are resolved.
c. Expenditure Records. County shall document and require all Providers by contract to
document the expenditure of all financial assistance paid by Agency under this Agreement.
Unless applicable federal law requires County or a Provider to utilize a different accounting
system, County shall create and maintain and require all Providers by contract to create and
maintain all expenditure records in, accordance with generally accepted accounting principles
and in sufficient detail to permit Agency to verify how the financial assistance paid by Agency
under this Agreement was expended.
9. County Default. County shall be in default under this Agreement upon the occurrence of any
of the following events:
a. County fails to perform, observe or discharge any of its covenants, agreements or
obligations set forth herein, including but not limited to, County's failure to comply with the
Plan;
b. Any representation, warranty or statement made by County herein or in any documents
or reports relied upon by Agency to measure County performance hereunder, including
without limitation, the conduct of Activities, the expenditure of financial assistance or the
performance by County, is untrue in any material respect when made;
c. County (i) applies for or consents to the appointment of, or taking of possession by, a
receiver, custodian, trustee, or liquidator of itself or all of its property, (ii) admits in writing its
inability, or is generally unable, to pay its debts as they become due, (iii) makes a general
assignment for the benefit of its creditors, (iv) is adjudicated a bankrupt or insolvent, (v)
commences a voluntary case under the Federal Bankruptcy Code (as now or hereafter in
effect), (vi) files a petition seeking to take advantage of any other law relating to bankruptcy,
insolvency, reorganization, winding-up, or composition or adjustment of debts, (vii) fails
controvert in a timely and appropriate manner, or acquiesces in writing to, any petition filed
against it in an involuntary case under the Bankruptcy Code, or (viii) takes any action for the
purpose of effecting any of the foregoing; or
d. A proceeding or case is commenced, without the application or consent of County, in
any court of competent jurisdiction, seeking (i) the liquidation, dissolution or winding-up, or the
composition or readjustment of debts, of County, (ii) the appointment of a trustee, receiver,
custodian, liquidator, or the like for County or of all or any substantial part of its assets, or (iii)
similar relief in respect to County under any law relating to bankruptcy, insolvency,
reorganization, winding-up, or composition or adjustment of debts, and such proceeding or
case continues undismissed, or an order, judgment, or decree approving or ordering any of
the foregoing is entered and continues unstayed and in effect for a period of sixty consecutive
days, or an order for relief against County is entered in an involuntary case under the Federal
Bankruptcy Code (as now or hereafter in effect).
Contract # DES1315 Deschutes County Page 15 of27
10. Agency Default. Agency shall be in default under this Agreement upon the occurrence of
any of the following events:
a. Agency fails to perform, observe or discharge any of its covenants, agreements, or
obligations set forth herein; or
b. Any representation, warranty or statement made by Agency herein or in any documents
or reports made in connection herewith reasonably relied upon by County to measure
performance by Agency is untrue in any material respect when made.
11. Termination.
a. County Termination. County may terminate this Agreement in its entirety or may
terminate its obligation to provide services under this Agreement as follows:
(i) At its sole discretion upon 60 days advance written notice to Agency, or
(ii) Upon 30 days advance written notice to Agency, if Agency is in default under this
Agreement and such default remains uncured at the end of said 30 day period or such
longer period, if any, as County may specify in the notice; or
(iii) Upon 45 days advance notice to Agency, if County does not obtain funding,
appropriations and other expenditure authorizations from County's governing body,
federal, state or other sources sufficient to permit County to satisfy its performance
obligations under this Agreement, as determined by County in reasonable exercise of its
administrative discretion; or
(iv) Immediately upon written notice to Agency, if Oregon statutes or federal laws,
regulations or guidelines are modified, changed or interpreted by the Oregon Legislative
Assembly, the federal government or a court in such a way that County no longer has
the authority to meet its obligations under this Agreement.
b. Agency Termination. Agency may terminate this Agreement in its entirety or may
terminate its obligation to provide financial assistance under this Agreement for a particular
Funding Area described in the Award:
(i) Upon 60 days advance written notice to County, if Agency determines, in its sole
discretion, to end all or any portion of the financial assistance to County under this
Agreement; or
(ii) Upon 45 days advance notice to County, if Agency does not obtain funding,
appropriations and other expenditure authorizations from federal, state or other sources
sufficient to meet the payment obligations of Agency under this Agreement, as
determined by Agency in the reasonable exercise of its administrative discretion.
Notwithstanding the preceding sentence, the Agency may terminate immediately
upon written notice to County or at such other times as it may determine if action by the
federal government, the Oregon Legislative Assembly. the Oregon Department of
Administrative Services. or the Emergency Board reduces funding to be provided by
Agency under this Agreement or the Agency's legislative authorization and the effective
date for such reduction is less than 45 days from the date the action is taken.
Contract # DES1315 Deschutes County Page 16 of 27
(iii) Immediately upon written notice to County if state or federal laws, regulations or
guidelines are modified, changed or interpreted in such a way that the Agency does not f
have the authority to provide financial assistance for one or more Funding Areas or no
longer has the authority to provide the financial assistance from the funding source it had
planned to use.
(iv) Upon 30 days advance written notice to County, if County is in default under this
Agreement and such default remains uncured at the end of said 30 day period or such
longer period, if any, as Agency may specify in the notice.
(v) Immediately upon written notice to County, if any license or certificate required by
law or regulation to be held by County or a Provider to conduct an Activity for any reason
denied, revoked, suspended, not renewed or changed in such a way that County or a
Provider no longer meets requirements to conduct that Activity. This termination right
may only be exercised with respect to the Funding Area impacted by loss of necessary
licensure or certification. I(vi) Immediately upon written notice to County, if Agency determines that County or any
of its Providers have endangered or are endangering the health or safety of individuals. i
(vii) Upon 30 days advance written notice to County. if an Early Learning Hub (as
contemplated by HB 2222 (2013) and HB 2013 (2013») is established to serve County's
jurisdiction.
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12. Effect of Termination I
a. Generally. If Agency disbursements of financial assistance under this Agreement for a
particular Funding Area are reduced under Section '13 of Exhibit E, or as a result of Agency's
exercise of its rights under this Exhibit E, or as a result of an amendment to this Agreement
reducing the amount of financial assistance awarded for that Funding Area, County is not
required by this Agreement to utilize other County funds to replace the funds no longer
received under this Agreement as a result of the disbursement reduction. Furthermore,
County may, from and after the date of a disbursement reduction described in the preceding Isentence, reduce or eliminate the quantity of Activities within that Funding Area f
commensurate with the size of the disbursement reduction for that Funding Area. Nothing in
this Section 12(a) shall affect the County's obligations under this Agreement with respect to Ifinancial assistance actually received by County under this Agreement or with respect to
Activities actually performed. t
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b. Entire Agreement. Upon termination of this Agreement in its entirety, Agency shall have !
no further obligation to payor disburse financial assistance to County under this Agreement,
whether or not Agency has paid or disbursed to County all financial assistance described in
the Award. Notwithstanding the foregoing, Agency shall make payments to reimburse County ffor services provided prior to the effective date of termination where such services are iauthorized pursuant to this Agreement and are not disputed by Agency. County shall have no
further obligation to perform activities or services under this Agreement after termination in its {
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entirety except to provide information as required under this Agreement and to cooperate with ,
Agency with respect to the enforcement of surviving rights and obligations under Subsection ~
12d. IContract # DES1315 Deschutes County Page 17 of 27
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c. Award for Individual Funding Area. Upon termination of Agency's obligation to
provide financial assistance under this Agreement for a particular Funding Area, Agency shall
have no further obligation to payor disburse any financial assistance to County under this
Agreement for that Funding Area, whether or not Agency has paid or disbursed to County all
financial assistance described in the Award for that Funding Area. Notwithstanding the
foregoing, Agency shall make payments to reimburse County for services provided prior to the
effective date of termination where such services are authorized pursuant to this Agreement
and are not disputed by Agency. County shall have no further obligation to perform services
or activities under this Agreement within a particular Funding Area if Agency's obligation to
provide financial assistance for that particular Funding Area has been terminated except to
provide information as required under this Agreement and to cooperate with Agency with
respect to the enforcement of surviving rights and obligations under Subsection 12d.
d. Survival. Termination of this Agreement shall not extinguish or prejudice Agency's right
to enforce this Agreement in accordance with its terms with respect to financial assistance
disbursed to County under this Agreement prior to the termination. Specifically, but without
limiting the generality of the preceding sentence, termination of this Agreement shall not affect
Agency's right to recover from County, in accordance with the terms of this Agreement, any
financial assistance disbursed to County that is identified as an Underexpenditure or
Misexpenditure. Termination of this Agreement, in whole or in part, shall not affect County's
right to receive financial assistance to which it is entitled, as described above in Subsections
a. through c. In addition, termination of this Agreement shall not affect the parties rights to
enforce terms or conditions of this Agreement that, by their express language or nature,
should survive termination of this Agreement, including but not limited to the indemnities set
forth in Section 12 of Exhibit F. If a termination right set forth in this Exhibit E is exercised,
both parties shall make reasonable good faith efforts to minimize unnecessary disruption or
other problems associated with the termination. Specifically, but without limiting the generality
of the preceding sentence, if this Agreement is terminated because an Early Learning Hub is
established to serve County's jurisdiction, the parties shall cooperate in the transition of early
learning services to the Early Learning Hub.
13. Modification of Award. If the Oregon Legislative Assembly, Legislative Emergency Board or
Oregon Department of Administrative Services increases or decreases the amount of money
appropriated, authorized or allotted to Agency, Agency shall provide written notice of such a
change to County. The parties shall negotiate an agreement to adjust County's levels of service in
a commensurate amount and in proportion to the increase or decrease in the appropriation,
authorization or allotment to the Agency. As appropriate, the parties shall execute an amendment
to this Agreement reflecting the increase or decrease in the Award and adjustment in levels of
service. Nothing in this section shall limit or restrict Agency's rights under this Agreement to
suspend disbursement of financial assistance or to terminate this Agreement (or portion thereof as
provided in this Exhibit E) as a result of a reduction in appropriations or allotments. This Section is
not applicable to any funding change that requires a different or new service to be provided.
Further, all parties agree that County may reduce, adjust or terminate levels of service
commensurate with the amount of any reduction of money appropriated for implementation of the
Plan, in accordance with Exhibit E, Section 1 (a) of this Agreement.
14. Resolution of Disputes over Additional Financial Assistance Claimed by County. If
after termination of this Agreement, County believes that Agency disbursements of financial
assistance under this Agreement for a particular Funding Area are less than the amount of
Contract # DES1315 Deschutes County Page 18 of27
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financial assistance that Agency is obligated to provide to County under this Agreement for that
Funding Area, as determined in accordance with applicable financial assistance calculation
methodology, County shall provide Agency with written notice thereof. Agency shall have 90 to
calendar days from the effective date of County's notice to pay County in full or notify County that it
wishes to engage in a dispute resolution process. If Agency notifies County that it wishes to
engage in a dispute resolution process, County and Agency's Assistant Administrator shall engage
in non-binding discussion to give Agency an opportunity to present reasons why it believes that it
does not owe County any additional financial assistance or that the amount owed is different than !
the amount identified by County in its notices, and to give County the opportunity to reconsider its
notice. If Agency and County reach agreement on the additional amount owed to County, Agency
shall promptly pay that amount to County. If Agency and County continue to disagree as to the
amount owed, the parties may agree to consider further appropriate dispute resolution processes,
including, subject to Department of Justice and County Counsel approval, binding arbitration.
Nothing in this Section shall preclude the County from raising underpayment concerns at any time
prior to termination of this Agreement under Section 15 below,
15. Resolution of Disputes, Generally. In addition to other processes to resolve disputes
provided in this Exhibit, either party may notify the other party that it wishes to engage in a dispute
resolution process. Upon such notification, the parties shall engage in non-binding discussion to
resolve the dispute. If the parties do not reach agreement as a result of non-binding discussion, the
parties may agree to consider further appropriate dispute resolution processes, including, subject
to Department of Justice and County Counsel approval, binding arbitration. The rights and
remedies set forth in this Agreement are not intended to be exhaustive and the exercise by either
party of any right or remedy does not preclude the exercise of any other rights or remedies
available under this Agreement or otherwise available at law or in equity.
Contract # DES1315 Deschutes County Page 19 of27
EXHIBIT F
STANDARD TERMS AND CONDITIONS
1. Notice. Except as otherwise expressly provided in this Agreement, any communications
between the parties hereto or notices to be given hereunder shall be given in writing by personal
delivery, facsimile, email or mailing the same, postage prepaid to County or Agency at the address
or number set forth below, or to such other addresses or numbers as either party may indicate
pursuant to this section. Any communication or notice so addressed and mailed shall be effective
five (5) days after mailing. Any communication or notice delivered by facsimile shall be effective on
the day the transmitting machine generates a receipt of the successful transmission, if
transmission was during normal business hours of the recipient, or on the next business day, if
transmission was outside normal business hours of the recipient. To be effective against Agency,
any notice transmitted by facsimile must be confirmed by telephone notice to Agency's Business
Services Office at (503) 373-1283. To be effective against County, any notice transmitted by
facsimile must be confirmed by telephone notice to County. Any communication or notice given by
personal delivery shall be effective when actually delivered.
Notices to Agency: THE EARLY LEARNING DIVISION,
775 Court Street NE, Salem, OR 97301
Voice: 503.373.1283
Facsimile: 503.378.8395
Email: serena.harris@state.or.us .
Notices to County: Deschutes County CCF
1130 NW Harriman, Suite A
Bend, OR 97701
Severability. The parties agree that if any term or provision of this Agreement is declared by a
court of competent jurisdiction to be illegal or in conflict with any law, the validity of the remaining
terms and provisions shall not be affected, and the rights and obligations of the parties shall be
construed and enforced as if the Agreement did not contain the particular term or provision held to
be invalid.
2. Counterparts. This Agreement may be executed in several counterparts, all of which when
taken together shall constitute one agreement binding on all parties, notwithstanding that all parties
are not signatories to the same counterpart. Each copy of this Agreement so executed shall
constitute an original.
3. Governing Law, Consent to Jurisdiction. This Agreement shall be governed by and
construed in accordance with the laws of the State of Oregon without regard to principles of
conflicts of law. Any claim, action, suit or proceeding (collectively, "Claim") between the parties that
arises from or relates to this Agreement shall be brought and conducted solely and exclusively
within a circuit court in the State of Oregon of proper jurisdiction. THE PARTIES BY EXECUTION
OF THIS AGREEMENT, HEREBY CONSENT TO THE IN PERSONAM JURISDICTION OF SAID
COURT. Except as provided in this section, neither party waives any form of defense or immunity,
whether sovereign immunity, governmental immunity, immunity based on the eleventh amendment
to the Constitution of the United States or otherwise, from any Claim or from the jurisdiction of any
other court. The parties acknowledge that this is a binding and enforceable agreement and, to the
extent permitted by law, expressly waive any defense alleging that either party does not have the
Contract # DES1315 Deschutes County Page 20 of 27
right to seek judicial enforcement of this Agreement.
4. Compliance with Law. Both parties shall comply and County shall require all Providers by
contract to comply with all state and local laws, regulations, executive orders and ordinances
applicable to the Agreement or to the conduct of Activities. Without limiting the generality of the
foregoing, both parties expressly agree to comply with the following laws, regulations and
executive orders to the extent they are applicable: (a) all applicable requirements of state civil
rights and rehabilitation statutes, rules and regulations; (b) all state laws requiring reporting of
client abuse; (d) ORS 30.670 to 30.685, ORS 659.430 and all regulations and administrative rules
established pursuant to those laws in the construction, remodeling, maintenance and operation of
any structures and facilities, and in the conduct of all programs, services and training associated
with the conduct of Activities. These laws, regulations and executive orders are incorporated by
reference herein to the extent that they are applicable to the Agreement and required by law to be
so incorporated. All employers, including County and Agency, that employ subject workers who
conduct Activities in the State of Oregon shall comply with ORS 656.017 and provide the required
Workers' Compensation coverage, unless such employers are exempt under ORS 656.126.
County shall require by contract that all Providers comply with these requirements and obtain any
insurance required elsewhere in this Agreement.
5. Assignment of Agreement, Successors in Interest.
a. County shall not assign, delegate, or transfer its interest in this Agreement without prior
written approval of Agency. Any such assignment or transfer, if approved, is subject to such
conditions and provisions as the Agency may deem necessary. No approval by the Agency of
any assignment or transfer of interest shall be deemed to create any obligation of the Agency
in addition to those set forth in the Agreement.
b. The provisions of this Agreement shall be binding upon and shall inure to the benefit of
the parties hereto, and their respective successors and permitted assigns.
6. No Third Party Beneficiaries. Agency and County are the only parties to this Agreement and
are the only parties entitled to enforce its terms. The parties agree that County's performance
under this Agreement is solely for the benefit of Agency to assist and enable Agency to accomplish
its statutory mission. Nothing in this Agreement gives, is intended to give, or shall be construed to
give or provide any benefit or right, whether directly, indirectly or otherwise, to third persons any
greater than the rights and benefits enjoyed by the general public unless such third persons are
individually identified by name herein and expressly described as intended beneficiaries of the
terms of this Agreement.
7. Integration and Waiver. This Agreement, including all of its Exhibits, 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 Agreement. The
failure of either party to enforce any provision of this Agreement shall not constitute a waiver by
that party of that or any other provision. The remedies provided herein are cumulative and not
exclusive of any remedies provided by law. No waiver or consent shall be effective unless in writing
and signed by the party against whom it is asserted.
8. Amendment. No waiver, consent, modi'fication or change of terms of this Agreement shall
bind either party unless in writing and signed by both parties and when required the Department of
Administrative Services and Department of Justice. Such waiver, consent, modification or change,
Contract # DES1315 Deschutes County Page 21 of27
if made, shall be effective only in the specific instance and for the specific purpose given. The
parties, by signature of their authorized representatives, hereby acknowledge that they have read
this Agreement, understand it, and agree to be bound by its terms and conditions.
9. Headings. The headings and captions to sections of this Agreement have been inserted for
identification and reference purposes only and shall not be used to construe the meaning or to
interpret this Agreement.
10. Construction. This Agreement is the product of negotiations between representatives of
Agency and representatives of County. The provisions of this Agreement are to be interpreted and
their legal effects determined as a whole. An arbitrator or court interpreting this Agreement shall
give a reasonable, lawful and effective meaning to the Agreement to the extent possible, consistent
with the public interest.
11. Indemnity.
a. To the extent permitted by Article XI, Section 10, of the Oregon Constitution and the
Oregon Tort Claims Act, ORS 30.260 through 30.300, to the extent the Act is applicable,
County 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 resulting from or arising out of, or
relating to the activities of County or its officers, employees, contractors, or agents under this
Agreement, except for liability arising solely out of the wrongful acts of employees or agents of
the State of Oregon or Agency
b. To the extent permitted by Article XI, Section 7, of the Oregon Constitution and the
Oregon Tort Claims Act, ORS 30.260 through 30.300, to the extent the Act is applicable,
Agency shall indemnify within the limits and subject to the restrictions in the Oregon Tort
Claims Act, the County against liability for personal injury or damage to life or property
ariSing from Agency's activity under the Agreement, provided, however, that the Agency
shall not be required to indemnify the County for any such liability ariSing out of the wrongful
acts of the County, its officers, employees or agents.
c. The parties agree and acknowledge that their relationship is that of independent
contracting parties and that County is not an officer, employee, or agent of the State of
Oregon as those terms are used in ORS 30.265 or otherwise.
12. Limitation of Liabilities. EXCEPT FOR LIABILITY OR DAMAGES ARISING OUT OF OR
RELATED TO SECTION 12 OF THIS EXHIBIT, NEITHER PARTY SHALL BE LIABLE TO THE
OTHER FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR
RELATED TO THIS AGREEMENT. NEITHER PARTY SHALL BE LIABLE FOR ANY DAMAGES
OF ANY SORT ARISING SOLELY FROM THE TERMINATION OF THIS AGREEMENT OR ANY
PART HEREOF IN ACCORDANCE WITH ITS TERMS.
13. Ownership of Intellectual Property.
a. Except as otherwise expressly provided herein, or as otherwise required by state or
federal law, Agency will not own the right, title and interest in any intellectual property created
or delivered by County or a Provider in connection with the activities under this Agreement.
With respect to that portion of the intellectual property that the County owns, County grants
Contract # DES1315 Deschutes County Page 22 of 27
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the Agency a perpetual, worldwide, non-exclusive, royalty-free and irrevocable license
(subject to any provisions in the Agreement that restrict or prohibit dissemination or disclosure
of the intellectual property) to (i) reproduce, perform and display the intellectual property, (ii)
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authorize third parties to exercise the rights set forth in Section 14.a.(i) on the Agency's ibehalf, and (iii) sublicense to third parties the rights set forth in Section 14.a.(i): f
b. If state or federal law requires that the Agency or County grant to the United States a
license to any intellectual property, or if state or federal law requires that the Agency or the
IUnited States own the intellectual property, then County shall execute such further documents
and instruments as Agency may reasonably request in order to make any such grant or to
Iassign ownership in the intellectual property to the United States or the Agency. To the extent f that the Agency becomes the owner of any intellectual property created or delivered by
County in connection with the activities under this Agreement, the Agency will grant a
perpetual, worldwide, non-exclusive, royalty-free and irrevocable license (subject to any
provisions in the Agreement that restrict or prohibit dissemination or disclosure of information)
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to County to use, copy, distribute, display, build upon and improve the intellectual property. t
Ii c. County shall include in its Provider Agreements terms and conditions necessary to irequire that Providers execute such further documents and instruments as Agency may f ~reasonably request in order to make any grant of license or assignment of ownership that may
be required by federal or state law. fi
14. Force Majeure. Neither Agency nor County shall be held responsible for delay or default
caused by fire, civil unrest, labor unrest, natural causes and war which is beyond respectively, the
Agency's or County's reasonable control. Each party shall, however, make all reasonable efforts to Iremove or eliminate such cause of delay or default and shall, upon the cessation of the cause,
diligently pursue performance of its obligations under this Agreement.
15. Time is of the Essence. The parties agree that time is of the essence under this Agreement. I
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Contract # DES1315 Deschutes County Page 23 of 27
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EXHIBIT G
REQUIRED FEDERAL TERMS AND CONDITIONS
In addition to the requirements to comply with applicable federal law otherwise in this Agreement,
including but not limited to Section 5 of Exhibit F, County shall comply with and shall require all
Providers by contract to comply with the following federal requirements. For purposes of this
Agreement, 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. County shall comply and require all Providers by
contract to comply with all federal laws, regulations, and executive orders applicable to the
Agreement or to the conduct of Activities. Without limiting the generality of the foregoing, County
expressly agrees to comply and require all Providers by contract to comply with the following laws,
regulations and executive orders to the extent they are applicable to this Agreement: (a) Titles 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) Executive Order 11246, as amended, the Age Discrimination in
Employment Act of 1967, as amended, and the Age Discrimination Act of 1975, as amended, (e)
the Vietnam Era Veterans' Readjustment Assistance Act of 1974, as amended, (f) the Federal
Funding Accountability and Transparency Act (FFATA) of 2006 (P.L.1 09-282), provisions of which
include but may not be limited to a requirement for County and/or Providers to have a Data
Universal Numbering System (DUNS) number and to maintain a current registration in the Central
Contractor Registration (CCR) database, (g) all regulations and administrative rules established
pursuant to the foregoing laws, (h) all other applicable requirements of federal civil rights and
rehabilitation statutes, rules and regulations, (i) 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 this Agreement and required by law to be so incorporated. No federal
funds may be used to conduct Activities in violation of 42 USC 14402.
2. Title XX Block Grant Funds. When utilizing Title XX block grant funds, County shall comply
and require all Providers by contract to comply with the additional federal requirements applicable
to Title XX block grant funds in 42 USC 1397 et seq., including but not limited to: maintaining and
providing to Agency such documentation as Agency shall require to comply with federal reporting
requirements, 45 CFR Part 96, and the limitations on the uses of Title XX grants in 42 USC 1397d.
3. Title IV-B2 Family Support Services Funds. When utilizing federal Title IV-B2 Family
Support Services funds, County shall comply and require all Providers by contract to comply with
the additional federal requirements applicable to Title IV-B2 Family Support Services funds in 42
USC 629 et seq., including but not limited to: maintaining and providing to Agency such
documentation as Agency shall require to comply with federal reporting requirements, 45 CFR Part
92, and the limitations on the use of Title IV-B2 funds in 42 USC 629d.
4. Cost Principles. With respect to federal funds, if any, received by County under this
Agreement from the sources identified in sections 2 and 3 above, County shall comply and require
all Providers by contract to comply with the cost principles determined in accordance with the
provisions of OMB Circular A-87, "Cost Principles for State, local and Indian Tribal Governments."
Federal funds, if any, received by County under this Agreement from the sources identified in
sections 2 through 4 above are subject to the audit requirements under the Single Audit Act
Amendments of 1996 and OMB Circular A-133, "Audits of States, local Governments, and Non
Profit Organizations," If applicable, County shall comply and shall require all Providers by contract
to comply, with the audit requirements and responsibilities set forth in OMB Circular A-133.
Contract # DES1315 Deschutes County Page 24 of27
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5. Equal Employment Opportunity. If this Agreement, including amendments, is for more I
than $10,000, then County shall comply with Executive Order 11246, entitled "Equal Employment
Opportunity," as amended by Executive Order 11375, and as supplemented in Department of ,
Labor regulations (41 CFRPart60). OMB Circular A-102.
6. Clean Air, Clean Water, EPA Regulations. If this Agreement, including amendments,
exceeds $100,000 then County shall comply with all applicable standards, orders, or requirements
issued under Section 306 of the Clean Air Act (42 U.S.C. 1857(h», Section 508 of the Clean Water
Act (33 U.S.C. 1368), Executive Order 11738, and Environmental Protection Agency regulations
(40 CPR Part 15), which prohibit the use under non-exempt Federal contracts, grants or loans of
facilities included on the EPA List of Violating Facilities. Violations shall be reported to the Agency
and to the U.S.E.P.A. Assistant Administrator for Enforcement (EN-329). County shall include and
cause all Providers to include in all contracts with Providers receiving more than $100,000 in
Federal Funds, language requiring the Provider to comply with the federal laws identified in this
section. OMB Circular A-102.
7. Energy Efficiency. County shall 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. 94-165). OMB Circular A-102.
8. Truth in Lobbying. The County certifies, to the best of the County's knowledge and belief
that:
a. No federal appropriated funds have been paid or will be paid, by or on behalf of County,
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 any 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 the 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 any such officer, employee or member in
connection with this federal contract, grant, loan or cooperative agreement, the undersigned
shall complete and submit Standard Form LLL, "Disclosure Form to Report Lobbying" in
accordance with its instructions.
c. The County shall require that the language of this certification be included in the award
documents for all sub-awards at all tiers (including subcontracts, sub-grants, and contracts
under grants, loans, and cooperative agreements) and that all Providers, subrecipients and
subcontractors shall certify and disclose accordingly. I
d. The County is solely responsible for all liability arising from a failure by the County to
comply with the terms of this certification. Additionally, the undersigned promises to indemnify I
the Agency for any damages suffered by the Agency as a result of the County's failure to
comply with the terms of this certification to the extent permitted by law. I
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
Contract # DES1315 Deschutes County Page 25 of 27
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.
9. HIPAA Compliance. If the Activities are funded in whole or in part with financial assistance
provided under this Agreement are covered by the Health Insurance Portability and Accountability
Act or the federal regulations implementing the Act (collectively referred to as HIPAA), County
agrees to conduct the Activities in compliance with HIPAA.
10. Resource Conservation and Recovery. County shall comply and require all Providers by
contract 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.
11. Debarment and Suspension. County shall not permit any person or entity to be a Provider 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. Providers 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.
12. Americans with Disabilitites Act. County shall comply and require all Providers by contract
to comply with Title II of the Americans with Disabilities Act of 1990 (codified at 42 USC 12131 et.
seq.) in the construction, remodeling, maintenance and operation of any structures and facilities,
and in the conduct of all programs, services and training associated with the conduct of Activities.
13. Pro-Children Act. County shall comply and require all Providers by contract to comply with
the Pro-Children Act of 1995 (codified at 20 USC section 6081 et. seq.).
14. REQUIRED FEDERAL TERMS AND CONDITIONS. In addition to the Required Federal
Terms and Conditions of EX~libit G, County shall comply and, as indicated, require all Providers by
contract to comply with the following federal requirements:
a. HIPAA Compliance. If the Activities are funded in whole or in part with financial
assistance provided under this Agreement are covered by the Health Insurance Portability
and Accountability Act or the federal regulations implementing the Act (collectively referred to
as HIPAA) and County has declared itself a "covered entity" under HIPAA, County agrees to
conduct the Activities in compliance with HIPAA. Without limiting the generality of the
foregoing, if the services are covered by HIPAA, County shall comply and require all
Providers to comply with the following:
b. Privacy and Security of Individually Identifiable Health Information. On or after
April 14, 2003, County, its agents, employees and Providers shall protect individually
identifiable health information obtained or maintained about Agency's clients from
Contract # DES1315 Deschutes County Page 26 of 27
Iunauthorized use or disclosure, consistent with the requirements of HIPM. The County
shall ensure that any electronic communication from the County to an employee of the IAgency which contains individually identifiable health information shall meet HIPM
security requirements. This Agreement may be amended to include additional terms and I iconditions related to the privacy and security of individually identifiable health
information. 1 t
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f c. Data Transactions Systems. Any electronic exchange of information on or after
October 16, 2002, or on or after October 16, 2003, if County has received an extension
from the United States Department of Health and Human Services, between County and
Agency to carry out financial or administrative activities related to individually identifiable
health care services will be in compliance with HIPM standards for electronic f
transactions published in 65 Fed. Reg. 50312 (August 17, 2000). This Agreement may
be amended to include additional terms and conditions related to data transactions. I
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d. Consultation. If County reasonably believes that the County's or the Agency's data
transactions system or other application of HIPM privacy or security compliance policy
may result in a violation of HIPM requirements, County shall promptly consult Agency's
HIPM Privacy Officer. i
15. Federal Fund Accountability and Transparency Act. County shall require by contract that Iall Providers receiving federal funding with a total value of $25,000 or more under this Agreement (
have a Data Universal Numbering System (DUNS) number and register in the Central Contractor
Registration (CCR) system. County may not sub-grant Award funds of $25,000 or more to a
Provider unless the Provider has a DUNS number and is registered in the Central Contractor
Registration system.
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