HomeMy WebLinkAboutDoc 500 - DOJ Funding - Juv DependencyDeschutes 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 September 7, 2011
Please see directions for completing this document on the next page.
DATE: September 1,2011
FROM: Debi Harr District Attorney (541) 330-4692
TITLE OF AGENDA ITEM:
Consideration of Board signature on Document # 2011-500, State of Oregon Department of Justice
Intergovernmental Agreement # I1-DA-39 for funding of juvenile dependency court proceedings ..
PUBLIC HEARING ON THIS DATE? No
BACKGROUND AND POLICY IMPLICATIONS:
This is a biennial agreement to encourage consistency across the State of Oregon in preparation for and
appearances in proceedings to obtain jurisdiction in juvenile dependency matters.
FISCAL IMPLICATIONS:
The agreement provides funding for Juvenile staff support. The total amount of the biennial agreement
is $82,188. This grant was not included in the fiscal year 2011-2012 budget.
RECOMMENDATION & ACTION REQUESTED:
Approval and Board signature on Document #2011-500 State of Oregon Department of Justice
Intergovernmental Agreement # II-DA-39.
ATTENDANCE: Debi Harr
DISTRIBUTION OF DOCUMENTS:
Please return all originals to Debi Harr at the District Attorney's office, 1164 NW Bond Street, Bend
OR 97701.
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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 for 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 fonn
electronically to the Board Secretary.)
Please complete all sections above the Official Review line.
Date: puly 21,20111 Department: IDistrict Attorne~
Contractor/Supplier/Consultant Name: IOregon Department of Justic~
Contractor Contact: ~manda Marshalll Contractor Phone #:
1(503) 934-44871
Type of Document: Intergovernmental agreement
Goods and/or Services: The purpose of this biennial agreement is to encourage
conSistency across the State in preparation for and appearances in proceedings to
obtain jurisdiction in juvenile dependency matters.
Background & History: This is the third biennium of grant funding for juvenile
dependency matters. The funding is reduced as a result of statewide reductions in
funding.
Agreement Starting Date: puly 1, 20111 Ending Date: pune 30, 201 ~
Annual Value or Total Payment: ~82,18ij
o Insurance Certificate Receiied (cleck box)
Insurance Expiration Date:
Check all that apply: o RFP, Solicitation or Bid Process o Informal quotes «$150K)
~ Exempt from RFP, Solicitation or Bid Process (specify -see DCC §2.37)
Funding Source: (Included in current budget? 0 Yes ~ No
If No, has budget amendment been submitted? 0 Yes ~ No
Is this a Grant Agreement providing revenue to the County?
Special conditions attached to this grant: See Exhibit A, B & C
Deadlines for reporting to the grantor: Quarterly
~ Yes 0 No
7/2112011
-
4692
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
Contact information for the person responsible for grant compliance:
Name: Patrick Flahe
Phone #: 541-388-6630
Departmental Contact and Title: Phone #: (541) 330
Department Director Approv
Distribution of Document: Please return all three originals to Debi Harr at the
District Attorney's office, 1164 NW Bond Street, Bend OR 97701.
Official Review:
County Signature Required (check one): mr BOCC 0 Department Director (if <$25K)
o Administrator (if >$25K but < 150K; if >$150K, BOCC Order No. ____----'
Legal Review Date t5 -3 / -1/
Document Number 2011-500
7/21/2011
,
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Agreement Number 11-DA-39
STATE OF OREGON
INTERGOVERNMENT AL AGREEMENT
This Agreement is among the State of Oregon, by and through its
Department of Justice
1162 Court Street NE
Salem, OR 97301-4096
(503) 378-6002
FAX (503) 378-4017
hereinafter referred to as "DOl," acting pursuant to ORS Chapter 180,
Deschutes County
Tammy Baney, Chair
Deschutes County Board of Commissioners
1300 NW Wall, Ste 200
Bend, OR 97701
Phone: (541) 388-6570
Fax: (503) 385-3202
hereinafter referred to as "County," and
Deschutes County District Attorney
Patrick Flaherty
1164 NW Bond Street
Bend, OR 97701
Phone: (541) 388-6630
Fax: (541) 330-4691
hereinafter referred to as "District Attorney" or "DA," acting pursuant to Article VII, Section 17
(original) of the Oregon Constitution .
RECITALS
WHEREAS , District Attorney , County and DOl wish to cooperate to ensure more consistent statewide
practice and participation by District Attorneys in court appearances and related activities in juvenile
dependency proceedings that occur at any time between the filing of a dependency petition pursuant to
ORS 419B.809 and the entry by a court of a disposition order on the merits on all allegations in that
petition ;
WHEREAS, District Attorneys and their Deputies have been appearing in dependency proceedings for
many years in support of the safety and welfare of children without state dedicated funding for those
efforts ;
WHEREAS, the alignment of interests between District Attorneys and Department of Human Services
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(DHS) (a Benefiting Agency) helps ensure that the focus of juvenile dependency proceedings is on the
safety, pennanency and well being of Oregon's children, and that, where appropriate, reasonable efforts
are made to preserve and reunify families;
WHEREAS, the Legislative Assembly appropriated funds to DHS for the 2011-2013 biennium to
encourage District Attorneys to increase their involvement in juvenile dependency proceedings
occurring at any time between the filing of a dependency petition pursuant to ORS 419B.809 and the
entry by a court of a disposition order on the merits on all allegations in that petition;
WHEREAS, the Legislative Assembly intended that its appropriation of funds would increase
involvement in or otherwise improve the quality of the juvenile dependency litigation programs in
every county in Oregon; and,
WHEREAS, it is acknowledged by all parties that moneys provided pursuant to this Agreement may be
used by County and District Attorney only to increase involvement in or otherwise improve the quality
ofjuvenile dependency proceedings occurring between the filing of a dependency petition pursuant to
ORS 419B.809 and the entry by a court of a disposition order on the merits on all allegations in that
petition;
NOW, THEREFORE, in consideration of the premises, covenants and agreements contained herein and
other good and valuable consideration the receipt and sufficiency of which are hereby acknowledged,
the parties hereto agree as follows:
AGREEMENT
I. EFFECTIVE DATE AND DURATION
This Intergovernmental Agreement ("Agreement") becomes effective on the date this
Agreement is fully executed by all parties and approved as required by applicable law. It
applies to the period from July 1,2011 through June 30, 2013, unless tenninated earlier in
accordance with its tenns. Agreement tennination or expiration shall not extinguish or
prejudice any party's right to enforce this Agreement with respect to any default by another
party that has not been cured.
II. AGREEMENT DOCUMENTS
A. This Agreement consists of the following documents:
This Agreement without Exhibits,
Exhibit A, Part 1: Description of Work and General Requirements,
Exhibit A, Part 2: Payment and Financial Reporting,
Exhibit A, Part 3: Special Tenns and Conditions,
Exhibit B: Standard Tenns and Conditions, and
Exhibit C: Required Federal Tenns and Conditions
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Exhibits A, B and C are attached and incorporated into this Agreement by this reference.
This Agreement constitutes the entire agreement between the parties on the subject
matter in it. There are no understandings, agreements or representations, oral or written,
regarding this Agreement that are not specified in it.
B. In the event of a conflict between two or more of the documents comprising this
Agreement, the language in the document with the highest precedence shall control. The
precedence of each of the documents comprising this Agreement is as follows, listed
from highest precedence to lowest precedence: (a) This Agreement without Exhibits, (b)
Exhibit C, (c) Exhibit A, (d) Exhibit B.
III. SERVICES TO BE PERFORMED
A. For purposes of this Agreement, "Work" means specific acts to be performed and
requirements to be fulfilled by County and District Attorney as set forth in Exhibit A.
B. County and District Attorney shall perform the Work in accordance with the terms and
conditions of this Agreement.
IV. PAYMENTS
A. The maximum not-to-exceed amount payable to County and District Attorney under this
Agreement, which includes any allowable expenses, is $82,188. DHS shall not pay
County and District Attorney any amount in excess of the not-to-exceed amount for
performing the Work, and shall not pay for Work until this Agreement has been signed
by all parties.
B. DHS shall pay only for performed Work under this Agreement, and may make interim
payments as provided for in Exhibit A.
V. DISTRICT ATTORNEY AND COUNTY DATA AND CERTIFICATION
A. District Attorney and County Tax Identification. County and District Attorney shall
provide County's and District Attorney's federal tax ID number(s) and the additional
information set forth below. This information is requested pursuant to ORS 305.385.
Please print or type the following information.
Name (exactly as filed with the IRS) D~5&lIfe5 COlil1ig Didtict AttIYI1l'~
Address I//,I{ NlI/ 81uld Stlee~ tJ~nd I)Jf 1f77{) I
Telephone: ( ) 6'11 -3ii-('52 Facsimile: ( )5!I.L -'330 -1t,f /
Federal Tax LD. #
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The above infonnation must be provided prior to Agreement approval. DOJ may report
the infonnation set forth above to the Internal Revenue Service (IRS) under the name
and taxpayer identification number provided.
B. Certification. By signature on this Agreement, the undersigned hereby certifies under
penalty of petjury that:
1. The Federal Tax I.D. number shown in Section YeA) is County's and District
Attorney's correct taxpayer identification and all other infonnation provided in
Section YeA) is true and accurate; and
2. County and District Attorney are not subject to backup withholding because:
1. County and District Attorney are exempt from backup withholding;
ll. County and District Attorney have not been notified by the IRS that either
County or District Attorney is subject to backup withholding as a result of
a failure to report all interest or dividends; or
111. The IRS has notified County and District Attorney that County and
District Attorney are no longer subject to backup withholding.
EACH PARTY, BY EXECUTION OF THIS AGREEMENT, HEREBY ACKNOWLEDGES
THAT IT HAS READ THIS AGREEMENT, UNDERSTANDS IT, AND AGREES TO BE
BOUND BY ITS TERMS AND CONDITIONS.
SIGNATURES:
County:
Authorized Signature Title Date
Authorized Signature Title Date
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Authorized Signature Title DateI.~
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Title Date
DOJ
Authorized Signature Title Date
Department of Human Services (Benefiting Agency)
Authorized Signature Title Date
Approved for Legal Sufficiency:
Assistant Attorney General Date
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I I, EXHIBIT A
Part 1
Description of Work and General Requirements
County and District Attorney shall, to the extent that resources pennit and in proportion to the payments
made pursuant to this Agreement, enlarge or otherwise improve the quality of the juvenile dependency
litigation program in accordance with the following procedural and operational requirements:
A. Hearings: The District Attorney shall prepare for and an attorney shall actively participate in the
following juvenile dependency events occurring in the county at any time between the filing of
any dependency petition and entry of a disposition order on the merits on all allegations in the
petition(s):
• Contested shelter hearings;
• Jurisdiction hearings;
• Disposition hearings (whether held with or separately from the jurisdiction hearing);
• Fonnal and infonnal settlement and pretrial conferences; and
• Aggravated circumstances hearings.
In addition, to the extent that remaining available resources pennit, the District Attorney shall
have an attorney prepare for and actively participate in other hearings that are contested or likely
to be contested and occur at any time between the filing of any dependency petition and entry of
disposition orders on the merits on all allegations in the petition(s).
B. Conduct at Hearing: The District Attorney shall:
• Present the State of Oregon's case-in-chief;
• Present evidence regarding the Oregon Department of Human Services' (DHS) "reasonable
efforts" to prevent removal and to make it possible for the child to safely return home and
evidence regarding whether it is in the "best interest of the child" to be removed from home;
• Present and examine witnesses and, when appropriate, present or object to exhibits,
settlements and stipulations;
• Make opening and closing statements, when appropriate, to aid the court in understanding
the issues; and
• Perfonn other actions appropriate to active participation in a hearing.
C. Hearing Preparation and Post-Hearing Work: In dependency cases, from the time the child is
taken into custody through the jurisdiction and disposition hearings, the District Attorney shall
perfonn the following functions as to juvenile dependency proceedings:
• Review for legal sufficiency, as appropriate, petitions, summons, stipulated orders, and
other orders and documents;
• Prepare pick-up orders (warrants), if needed;
• Take statutorily required steps to ensure that all necessary parties are properly given notice
or served and summoned to court. If necessary to accomplish this, the District Attorney
shall file motions for alternative service or service by publication or other motions to ensure
that proper notice has been given prior to taking a default judgment against a parent;
6 6/28/2011
• Prepare witness lists, issue witness subpoenas and arrange for service;
• Prepare, as necessary, witnesses for hearing;
• Draft necessary motions and pleadings and ensure that proper notice is provided to all
parties;
• Review discovery material from other parties and follow-up as necessary;
• Stipulate to, litigate or otherwise resolve pre-hearing motions as appropriate;
• Prepare stipulated orders as appropriate and ensure that proper notice is provided to all
parties; and
• Prepare orders when requested to do so by the court or when otherwise appropriate, and
ensure that proper notice is provided to all parties and the order is signed by the judge.
The District Attorney may delegate functions described above in this subsection to a non-lawyer
working under the supervision of the District Attorney or at the District Attorney's direction to the
extent that the function does not require the exercise of independent legal judgment.
D. Casework Procedures:
• Consultation: The District Attorney is authorized by DO] to consult as described herein
with DHS. Prior to and, as appropriate, during negotiations, formal or informal settlement
conferences and hearings, the District Attorney shall consult with DHS and consider DHS'
position on decisions about:
I. The need to remove a child from the child's home or to return the child to a parent;
2. The need to obtain jurisdiction pursuant to certain allegations, at any point in the
dependency proceedings, in order for DHS and the court to require parents to
complete services related to the allegation; and
3. Whether to accept, reject, litigate or otherwise resolve any offers of settlement or
compromise on individual petition allegations and on any other issues that arise in
the course of the case.
• Differences in Position: Prior to hearing, if the District Attorney determines that the
fundamental nature of the State of Oregon's position or recommendations on an individual
case is significantly different from what DHS has indicated its position or recommendations
would be, the District Attorney shall promptly inform the local DHS District Manager or
Child Welfare Program Manager of the nature and extent of the differences.
• Presentation ofDHS Position: If the position or recommendations to the court expressed by
the District Attorney are significantly different from DHS' position or recommendations,
and DO] is not appearing in a hearing on behalf of DHS, the District Attorney shall describe
the differences to the court.
E. General Requirements: The District Attorney shall:
• Promote timely hearings and strive to reduce case continuances;
7 6/28/2011
• Cooperate and communicate on a regular basis with other professionals and parties in a case,
including DHS;
• Provide that all attorney staff who work on these cases fully understand and comply with all
relevant federal and state laws, regulations, policies, rules and the requirements of this
Agreement; and
• Provide that all attorney staff who perform legal work on these cases receive at least one
day's training on the juvenile dependency process and legal issues arising therein each year.
F. Resources: County and District Attorney shall make sufficient resources available to enable
District Attorney to meet these procedural and operational requirements. Moneys provided pursuant to
this Agreement may be used by County and District Attorney only to enlarge or otherwise improve the
quality of the juvenile dependency litigation program by funding personnel expenses incurred in
enlarging or otherwise improving the quality of the juvenile dependency litigation program. None of
the additional funds paid pursuant to this Agreement may be applied to any other expense, including
service or supply costs.
G. Allocation of costs other than personnel costs. Notwithstanding paragraph F, the District
Attorney and County may continue to assign responsibility for payment of costs, including the cost of
retaining experts and serving process or subpoenas, between the District Attorney, County, and DHS as
those parties may have divided such costs on or before the effective date of this Agreement.
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EXHIBIT A
Part 2
Payment and Financial Reporting
1. The amount payable to County and District Attorney for Work performed in accordance with this
Agreement shall not exceed $82,188. Of that sum, one-eighth is allotted for payment in each of
the eight calendar quarters of the biennium. If District Attorney does not perform enough work in
a quarter to be able to claim the full allotment for that quarter, the unpaid amount will be rolled
over into succeeding quarter(s) until paid. The maximum amount to be paid for work performed
in any quarter is the allotment for that quarter plus any unpaid sums from prior quarter allotments.
DHS will not pay County and District Attorney any amount in excess of the amount stated in
Section IV ofthis Agreement for completing the Work, will not pay County or District Attorney
severally and will not pay for Work performed after the termination or expiration ofthe
Agreement. DHS also will not pay for work performed on cases where the fundamental nature of
the District Attorney's position or recommendations were significantly different from DHS'
position or recommendations. ! 2. DOl may examine invoices and audit and review the actual expenses of the County and District
I Attorney to ensure that the payments under this Agreement are reasonable and necessary, and to
ensure that the County's and DA's expenses are in accordance with applicable federal regulations
I and this Agreement. If DOl, DHS, the Oregon Secretary of State's Office or the federal
government finds, from an audit and review, that the County or District Attorney has made
expenditures from the funds under this Agreement for expenses that are not reasonable and
necessary or are not in accordance with applicable federal regulations or this Agreement, County
and District Attorney shall promptly refund the monies so expended to DOl upon request. f 1
3. The County or District Attorney shall invoice DHS quarterly for Work performed on electronic
form templates provided by DHS. A supply of the DHS forms shall be sent to the County or
District Attorney by DHS. Invoices shall include the following information:
• The names and dates of birth of all children whose juvenile dependency cases were
worked on during the quarter. Include only those children whose cases were at a point in
the period between the filing of a juvenile dependency petition and entry of a disposition
order on the merits on all allegations in the petition. Do not include children in cases
where the fundamental nature of the District Attorney's position or recommendations were
significantly different from DHS' position or recommendations.
• A list of the names of employees of the District Attorney who, during the quarter, worked
on juvenile dependency cases that involved at least one or more of the children included in
the list of names described immediately above. Include the total personnel costs for each
listed employee doing that work during the quarter, and estimate the overall percentage of
time that each listed employee spent working, during the quarter, on juvenile dependency
cases which were at some point in the period between the filing of a dependency petition
and the entry by a court of a disposition order on the merits on all allegations in that
petition (Qualifying Cases). [For audit purposes, this quarterly estimate of time spent
working on juvenile dependency cases must be supported by records retained by the
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District Attorney's office that indicate on a pay period or monthly basis the estimated
time spent by each employee working on such cases.] Exclude from the quarterly
percentage of time calculation the amount of time spent working on juvenile cases where
the fundamental nature ofthe District Attorney's position or recommendations were
significantly different from DHS' position or recommendations. Do this by subtracting
the estimate of each individual's time spent working on cases where the District
Attorney's fundamental position was significantly different from DHS' position from the
estimated time that person spent working on QualifYing Cases, and then calculating the
percentage of time spent on such dependency cases as a function of the total time spent
working. The District Attorney is responsible for the accuracy of estimates.
• Each invoice shall be accompanied by the District Attorney's certification in the following
form:
(a) The District Attorney performed all Work for which reimbursement is sought
in accordance with Exhibit A, Part I.
(b) The Work performed enlarged or otherwise improved the quality of the
juvenile dependency litigation program in comparison to the program as it would
have existed in the absence of the requested reimbursement.
(c) The cost of the Work performed is not less than the amount of
reimbursement sought.
Invoices shall be sent to DHS for review and approval:
CAF Administration
Attention: Nancy Sathrum
500 Summer Street NE
Salem, OR 97301
Questions about invoices may be made to Nancy Sathrum at the above address or at
Nancy.SATHRUM@state.or.us. Phone inquiries may be made to her at (503)945-5660.
DRS must receive all quarterly invoices by October 1,2013. County and District Attorney
lose the right to reimbursement for any claims for amounts not included on invoices
received by DRS as of that date .
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EXHIBIT A
Part 3
Special Terms and Conditions
I. Media Disclosure
Neither County nor DA shall provide infonnation to the media about a recipient of services covered
under this Agreement without first consulting the DHS office that referred the child or family. The
County or DA shall make immediate contact with the DHS office when media contact occurs.
II. Nondiscrimination
The County and DA must provide services without regard to race, religion, national origin, sex, age,
marital status, sexual orientation or disability (as defined under the Americans with Disabilities Act)
of the children who are the subject of the dependency petition that is covered by this Agreement.
Contracted services must reasonably accommodate the cultural, language and other special needs of
such children.
III. Criminal History Check
The County or DA shall verify that any County or District Attorney employee working with
children who are the subject of a dependency petition that is covered by this Agreement has not
been convicted of any of the following crimes: child abuse, offenses against persons, sexual
offenses, child neglect, or any other offense bearing a substantial relation to the qualifications,
functions or duties of an employee scheduled to work with such children. The County or DA shall
establish verification by:
(l) For applicants for employment, having the applicant, as a condition of employment, apply for
and receive a criminal history check from a local Oregon State Police (OSP) office, which shall
be shared with the County or DA,
(2) For applicants and employees, obtaining from the OSP for an "Oregon only" criminal history
check on the applicant or employee. The County or DA shall give OSP the applicant's or
employee's name, birth date and social security number, or
(3) Any other process by which the County or DA obtains the employee's or applicant's criminal
history.
The County or DA shall detennine, after receiving the applicant's or employee's criminal history,
whether the applicant or employee has been convicted of any crime listed above, and whether these
convictions pose a risk to working safely with such children.
If the County or DA learns of a conviction of any of the above listed crimes from the applicant or
employee's record, and the County or DA chooses to hire the employee or applicant, the County or
DA shall confinn in writing the reasons for hiring the individual. These reasons shall address how
the applicant/employee is presently suitable or able to work with such children in a safe and
trustworthy manner. The County or DA shall place this infonnation, along with the applicant's or
employee's criminal history check, in the employee's personnel file, and make it available upon
request in a review or audit.
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EXHIBITB
STANDARD TERMS & CONDITIONS
1. Governing Law, Consent to Jurisdiction. This Agreement shall be governed by and
construed in accordance with the laws of the State of Oregon without regard to principles of
conflicts of law. Any claim, action, suit or proceeding (collectively, "Claim") between the
parties that arise from or relate 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 COURTS. Except as provided in this section, neither party waives
any form of defense or immunity, whether sovereign immunity, governmental immunity,
immunity based on the eleventh amendment to the Constitution of the United States or
otherwise, from any Claim or from the jurisdiction of any court. The parties acknowledge that
this is a binding and enforceable agreement and, to the extent permitted by law, expressly waive
any defense alleging that either party does not have the right to seek judicial enforcement of this
Agreement.
2. Compliance with Law. The parties shall comply with all state laws, regulations and executive
orders applicable to the Agreement or to the Work. Without limiting the generality of the
foregoing, the parties expressly agree to comply with the following laws, regulations and
executive orders to the extent they are applicable to the Agreement: (a) all applicable
requirements of state civil rights and rehabilitation statutes, rules and regulations; (b) all state
laws requiring reporting of Client abuse; (c) ORS 659AAOO to 659AA09, ORS 659A.145 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 Work. These laws and regulations 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, DA and DOJ, that
employ subject workers who provide services in the State of Oregon shall comply with ORS
656.017 and provide the required Workers' Compensation coverage, unless such employers are
exempt under ORS 656.126.
3. Independent Contractors. The parties agree and acknowledge that their relationship is that of
independent contracting parties and that neither County nor DA nor their officers, employees or
agents is an officer, employee or agent of DOl as those terms are used in ORS 30.265 or
otherwise.
4. Funds Available and Authorized; Payments. Neither County nor DA shall be compensated
for Work performed under this Agreement by any other agency or department of the State of
Oregon or the federal government. DOl certifies that it has sufficient expenditure limitation
currently authorized to finance the costs of this Agreement within DOl's current biennial
appropriation or limitation. County and DA understand and agree that DOl's payment of
amounts under this Agreement is contingent on DOl and DHS receiving appropriations,
limitations, allotments or other expenditure authority sufficient to allow DOl and DHS, in the
exercise of their reasonable administrative discretion, to continue to make payments under this
Agreement, subject to Section 5 below.
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5. Recovery of Overpayments. If invoices under this Agreement, or under any other Agreement
between County or DA and DOJ, result in payments to County or DA to which County or DA is
not entitled, DOJ, after giving to County or DA written notification and an opportunity to
object, may withhold from payments due to County or DA such amounts, over such periods of
time, as are necessary to recover the amount of the overpayment, subject to Section 6 below.
Prior to withholding, if County or DA objects to the withholding or the amount proposed to be
withheld, County or DA shall notify DOJ that it wishes to engage in dispute resolution in
accordance with Section 16 of this Agreement.
6. Nothing in this Agreement shall require County, DA or DOJ to act in violation of state or
federal law, the United States Constitution or the Constitution of the State of Oregon.
7. County or DA Default. County or DA shall be in default under this Agreement upon the
occurrence of any of the following events:
a County or DA fails to perform, observe or discharge any of its covenants, agreements or
obligations set forth herein;
b. Any representation, warranty or statement made by County or DA herein or in any
documents or reports relied upon by DOJ to measure the delivery of Work, the
expenditure of payments or the performance by County or DA is untrue in any material
respect when made;
c. County or DA (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 to controvert in a timely and appropriate manner, or
acquiesces in writing to, any petition filed against it in an involuntary case under the
Bankruptcy Code, or (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 or
DA, in any court of competent jurisdiction, seeking (i) the liquidation, dissolution or
winding-up, or the composition or readjustment of debts, of County or DA, (ii) the
appointment of a trustee, receiver, custodian, liquidator, or the like of County or DA or
of all or any substantial part of its assets, or (iii) similar relief in respect to County or DA
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).
8. DOJ Default. DOJ shall be in default under this Agreement upon the occurrence of any of the
following events:
a. DOJ fails to perform, observe or discharge any of its covenants, agreements, or
obligations set forth herein; or
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b. Any representation, warranty or statement made by DOl herein or in any documents or
reports relied upon by County to measure performance by DOl is untrue in any material
respect when made.
9. Termination.
a. County or DA Termination. County or DA may terminate this Agreement:
(i) For County or DA's convenience, upon at least 30 days advance written notice to
DOl;
(ii) Upon 30 days advance written notice to DOl, if County or DA does not obtain
funding, appropriations and other expenditure authorizations from County's
governing body, federal, state or other sources sufficient to permit County or DA
to satisfy its performance obligations under this Agreement, as determined by
County or DA in the reasonable exercise of its administrative discretion;
(iii) Upon 30 days advance written notice to DOl, if DOl 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 or DA may specify in the notice; or
(iv) Immediately upon written notice to DOl, 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
I
~ !, County or DA no longer has the authority to meet its obligations under this
Agreement.
b. DOJ Termination. DOl may terminate this Agreement:
(i) For its convenience, upon at least 30 days advance written notice to County and
I DA;
I
(ii) Upon 30 days advance written notice to County, if DOl does not obtain funding,
appropriations and other expenditure authorizations from federal, state or other
sources sufficient to meet the payment obligations of DOl under this Agreement,
as determined by DOl in the reasonable exercise of its administrative discretion.
Notwithstanding the preceding sentence, DOl may terminate this Agreement,
I immediately upon written notice to County and DA or at such other time as it
may determine if action by the Oregon Legislative Assembly or Emergency
Board reduces DOl's legislative authorization for expenditure of funds to such a
degree that DOJ shall no longer have sufficient expenditure authority to meet its
payment obligations under this Agreement, as determined by DOJ in the
reasonable exercise of its administrative discretion, and the effective date for
such reduction in expenditure authorization is less than 30 days from the date the
action is taken;
(iii) Immediately upon written notice to County and DA 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 DOl no longer has the authority to meet its obligations under this Agreement
or no longer has the authority to provide payment from the funding source it had
planned to use;
(iv) Upon 30 days advance written notice to County and DA, if County or DA 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 DOl may specify in the notice;
(v) Immediately upon written notice to County or DA, if any license or certificate
14 6/28/2011
I I ..
required by law or regulation to be held by County or DA or a subcontractor to
I
I perform the Work is for any reason denied, revoked, suspended, not renewed or
changed in such a way that County or a subcontractor no longer meets
requirements to perform the Work. This termination right may only be exercised
with respect to the particular part of the Work impacted by loss of necessary
licensure or certification;
(vi) Immediately upon written notice to County and DA, if DOl determines that
County or DA or any of its subcontractors have endangered or are endangering
the health or safety of a client or others in performing Work covered by this
Agreement.
c. Mutual Termination. This Agreement 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.
10. Effect of Termination
a. Upon termination of this Agreement, DOl shall have no further obligation to pay County
or DA under this Agreement and County and DA shall have no further obligation to
perform Work under this Agreement.
b. Obligations and Liabilities. Notwithstanding Section tOea), any termination ofthis
Agreement shall not prejudice any obligations or liabilities of the parties accrued prior to
such termination.
11. Limitation of Liabilities. THE PARTIES SHALL NOT BE LIABLE TO EACH OTHER FOR
ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATED
TO THIS AGREEMENT. THE PARTIES SHALL NOT 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.
12. Insurance. There are no insurance requirements in this Agreement.
13. Records Maintenance; Access. County and DA shall maintain all financial records relating to
this Agreement in accordance with generally accepted accounting principles. In addition, County
and DA shall maintain any other records, books, documents, papers, plans, records of shipments
and payments and writings of County and DA, whether in paper, electronic or other form, that are
pertinent to this Agreement in such a manner as to clearly document County's and DA's
performance. All financial records, other records, books, documents, papers, plans, records of
shipments and payments and writings of County and DA, whether in paper, electronic or other
form, that are pertinent to this Agreement, are collectively referred to as "Records." County and
DA acknowledge and agree that DOl, DHS, the Oregon Secretary of State's Office and the federal
government and their duly authorized representatives shall have access to all Records to perform
examinations and audits and make excerpts and transcripts. County and DA shall retain and keep
accessible all Records for a minimum of six (6) years, or such longer period as may be required by
applicable law, following final payment and termination of this Agreement, or until the conclusion
of any audit, controversy or litigation arising out of or related to this Agreement, whichever date is
15 6/28/2011
later. County and DA shall maintain Records in accordance with the records retention schedules
set forth in OAR Chapter 166.
14. Force Majeure. A party shall not be held responsible for delay or default caused by fire, riot,
acts of nature, 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 that
party. Each party shall, however, make all reasonable efforts to remove or eliminate such cause
of delay or default and shall, upon the cessation of the cause, diligently pursue performance of
its obligations under this Agreement. For purposes of this section, an "act of nature" is a natural
occurrence of extraordinary and unprecedented proportions not foreshadowed by the usual
course of nature, whose magnitude and destructiveness could not have been anticipated or
provided against by exercise of ordinary foresight.
15. Assignment of Agreement, Successors in Interest.
a. Neither County nor DA shall assign, delegate or otherwise transfer their rights or
obligations under this Agreement without DOl's prior written consent. DOl may
condition its consent on such terms as it deems necessary. DOl's consent shall not be
deemed to create any obligation of DOl in addition to those set forth in this 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.
16. Resolution of Disputes, Generally. In the event a dispute arises under this Agreement, any
party may notify the other parties 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. The rights and remedies set forth in
the Agreement are not intended to be exhaustive and the exercise by any party of any right or
remedy does not preclude the exercise of any other rights or remedies at law or in equity.
17. Subcontracts. Neither County nor DA shall enter into any subcontracts for any of the Work
required by this Agreement without DOl's prior written consent. In addition to any other
provisions DOl may require, County and DA shall include in any permitted subcontract under
this Agreement provisions to require that DOl shall receive the benefit of subcontractor
performance as if the subcontractor were the County with respect to Sections 1,2,3, 13, 15, 18,
and 19 of this Exhibit B. DOl's consent to any subcontract shall not relieve County or DA of
any of its duties or obligations under this Agreement.
18. No Third Party Beneficiaries. DOl, County and DA are the only parties to this Agreement
and are the only parties entitled to enforce its terms. The parties agree that County's and DA's
performance under this Agreement are solely for the benefit of DOl to assist and enable DOl 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
DHS, to children who are the subject ofjuvenile dependency cases which are processed or
litigated under this Agreement or 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.
16 6/28/2011
19. Amendment. No amendment, modification or change of terms of this Agreement shall bind
either party unless in writing and signed by the parties and when required the Department of
Administrative Services. Such amendment, modification or change, if made, shall be effective
only in the specific instance and for the specific purpose given. The parties, by signature of its
authorized representative, hereby acknowledge that they have read this Agreement, understand
it, and agree to be bound by its terms and conditions.
20. 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.
21. Survival. Sections 1,4,5,6, 7, 10, 11, 12, 13, 16, 18, 19,20,21,22,23, and 25 of this Exhibit B
shall survive Agreement expiration or termination as well as those the provisions of this
Agreement that by their context are meant to survive. Agreement expiration or termination shall
not extinguish or prejudice either party's right to enforce this Agreement with respect to any
default by the other party that has not been cured.
22. 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, or mailing the same, postage prepaid to the other parties at the addresses or
numbers set forth below, or to such other addresses or numbers as any 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 the other parties, any notice transmitted by facsimile must be confirmed by
telephone notice to the other parties at numbers listed below. Any communication or notice
given by personal delivery shall be effective when actually delivered to the addressee.
DOJ: Department of Justice
Attention: Mary Williams
1162 Court Street NE
Salem, Oregon, 97301-4096
Telephone: 503-378-6002
Facsimile Number: 503-378-4017
COUNTY: Deschutes County
Tammy Baney, Chair
Deschutes County Board of Commissioners
1300 NW Wall, Ste 200
Bend, OR 97701
Phone: (541) 388-6570
Fax: (503) 385-3202
17 6/28/2011
DA: Deschutes County District Attorney
Patrick Flaherty
1164 NW Bond Street
Bend, OR 97701
Phone: (541) 388-6630
Fax: (541) 330-4691
23. 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.
24. 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 origina1.
25. Waiver. The failure of either party to enforce any provision ofthis Agreement shaH not
constitute a waiver by that party of that or any other provision. No waiver or consent shall be
effective unless in writing and signed by the party against whom it is asserted.
18 6/28/2011
EXHIBITC
REQUIRED FEDERAL TERMS AND CONDITIONS
In addition to any other requirements prescribed in Exhibit A, County and DA shaH comply and, as
indicated, require all subcontractors 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 and DA shall comply and require all subcontractors to comply with all federal laws,
regulations, executive orders applicable to the Agreement or to the delivery of Work. Without
limiting the generality of the foregoing, County and DA expressly agree to comply and require
all subcontractors to comply with the following laws, regulations and executive orders to the
extent they are applicable to the Agreement: (a) Title VI and VII of the Civil Rights Act of
1964, as amended, (b) Sections 503 and 504 ofthe 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 Agreement and required by law to be so incorporated. No federal funds may
be used to provide Work in violation of 42 USC 14402.
2. Equal Employment Opportunity
If this Agreement, including amendments, is for more than $10,000, then County and DA shall
comply and require all subcontractors 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 Agreement, including amendments, exceeds $100,000 then County and DA shall comply
and require all subcontractors 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 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 32), 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 DOJ, HHS and the appropriate Regional
Office of the Environmental Protection Agency. County and DA shall include and require all
subcontractors to include in all contracts with subcontractors receiving more than $100,000,
language requiring the subcontractor to comply with the federal laws identified in this section.
19 6/28/2011
4. Energy Efficiency
County and DA shall comply and require all subcontractors 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 County and DA certifY, to the best of the County's and DA's knowledge and belief that:
a. No federal appropriated funds have been paid or shall be paid, by or on behalf of County
or DA, 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 shall 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 County and DA shall complete and submit Standard Form LLL,
"Disclosure Form to Report Lobbying" in accordance with its instructions.
c. The County and DA shall require that the language of this certification be included in the
award documents for all subawards at all tiers (including subcontracts, subgrants, and
contracts under grants, loans, and cooperative agreements) and that all subrecipients and
subcontractors shall certifY and disclose accordingly.
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. Resource Conservation and Recovery
County and DA shall comply and require all subcontractors 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.
20 6/28/2011
7. Audits
County and DA shall comply and, if applicable, require a subcontractor 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. "
8. Debarment and Suspension
County and DA shall not permit any person or entity to be a subcontractor 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. 12549 and No. 12689, "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. Subcontractors 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.
9. Drug-Free Workplace
County and DA shall comply and require all subcontractors to comply with the following
provisions to maintain a drug-free workplace: (i) County and DA certify that they shall provide
a drug-free workplace by publishing a statement notifying their employees that the unlawful
manufacture, distribution, dispensation, possession or use of a controlled substance, except as
may be present in lawfully prescribed or over-the-counter medications, is prohibited in County's
and DA's workplace or while providing services to the DHS Clients. County's and DA's notice
shall specify the actions that shall be taken by County and DA against its employees for
violation of such prohibitions; (ii) Establish a drug-free awareness program to inform its
employees about: The dangers of drug abuse in the workplace, County's and DA's policy of
maintaining a drug-free 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 Work under this
Agreement a copy of the statement mentioned in paragraph (i) above; (iv) Notify each employee
in the statement required by paragraph (i) that, as a condition of employment to perform Work
under this Agreement, the employee shall: 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 DOJ within ten (10) days after receiving
notice under subparagraph (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 (i) through (vi); (viii)
Require any subcontractor to comply with subparagraphs (i) through (vii); (ix) Neither County
nor DA, or any of County's or DA's employees, officers, agents or subcontractors may perform
any Work required under this Agreement 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 County's or DA's
employee, officer, agent or subcontractor has used a controlled substance, prescription or non
prescription medication that impairs the County's or DA's employee, officer, agent or
21 6/28/2011
subcontractor's perfonnance of essential job function or creates a direct threat to the DHS
Clients or others. Examples of abnonnal behavior include, but are not limited to: hallucinations,
paranoia or violent outbursts. Examples of impainnents in physical or mental perfonnance
include, but are not limited to: slurred speech, difficulty walking or perfonning job activities;
(x) Violation of any provision of this subsection may result in tennination of the Agreement.
10. Pro-Children Act
County and DA shall comply and require all subcontractors to comply with the Pro-Children
Act of 1994 (codified at 20 USC section 6081 et. seq.).
11. Agency-based Voter Registration
County shall comply with the Agency-based Voter Registration sections of the National Voter
Registration Act of 1993 that require voter registration opportunities be offered to applicants for
services.
DM#2876825
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