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Risk Management

Clauses for Non-Insurance Risk Transfer
Recommended Clauses Notes When Do They Apply?
State of Oregon Responsibility. The State of Oregon agrees to be responsible for any damage or any third party liability which may arise from its (list the specific activity) subject to the limitations and conditions of the Oregon Tort Claims Act, ORS 30.260 through 30.300, and the Oregon Constitution Article XI, Section 7, to the extent of liability arising out of the negligence of the State. The State shall not be required to indemnify or defend the Contractor for any liability arising out of the wrongful acts of employees or agents of the Contractor.
 
  • Because of a constitutional limitation, a reciprocal indemnity clause from the state is not possible. However, if a Contractor requests an indemnity/hold harmless clause from the state, the State of Oregon Responsibility clause may be added.
  • Can be added upon request of Contractor.
  • May require the approval of your legal counsel. 
Indemnity/Hold Harmless Clause for Public Entities or State Agencies OUTSIDE of Oregon. Contractor shall indemnify, defend and hold harmless the State of Oregon and the Department of _______________, and their officers, employees and agents from and against all claims, suits, actions, losses, damages, liabilities, costs and expenses of any nature whatsoever resulting from, arising out of, or relating to the activities of Contractor or its officers, employees, sub-contractors, or agents under this Contract.
 
 
  • This clause is a standard indemnity/hold harmless clause that does not recognize any Tort Claims Act or other statutory limitations that the entity may have. 
  • We have recommended this as a standard clause because of the wide variance of statutes among each state or public entity. 
  • The entity may propose different language based on their statutory requirements.  Work with your DOJ Counsel to ensure that any changes are appropriate.
  • Standard for all contracts with public entities OUTSIDE of the State of Oregon.
  • These clauses add provisions that apply to almost all insurance.
  • Change the clauses only if your legal counsel approves.   
Indemnity Hold Harmless Clause for Another Oregon Public Entity. Public entity and Agency each shall be responsible, to the extent permitted by the Oregon Tort Claims Act (ORS 30.260-30.300), only for the acts, omissions or negligence of its own officers, employees or agents.
  • Each public entity needs to make it clear in writing that each entity is acting independently of each other, and who will be responsible if a loss occurs.
  • Each public entity shall be responsible exclusively with respect to their employees, for providing for employment-related benefits and deductions that are required by law, including but not limited to federal and state income tax deductions, workers’ compensation coverage, and PERS contributions.
  • Standard clause for contracts involving another Oregon Public Entity.
  • These clauses add provisions that apply to almost all insurance.
  • Change the clauses only if your legal counsel approves.   

 
If the Contractor is a Federal Government Agency.  (Federal agency) shall perform the services under this contract as an Independent Contractor.  (Federal agency) shall be responsible to the extent permitted by the Federal Tort Claims Act, only for the acts, omissions or negligence of its own officers, employees or agents. The (Oregon agency) shall be responsible to the extent permitted by the Oregon Tort Claims Act (ORS 30.260 - 30.300), only for the acts, omissions or negligence of its own officers, employees or agents.
 
  • The federal government is subject to its own tort claims act, not the State of Oregon’s act.
  • Like the State of Oregon, the federal government is self-funded for most of its risks.
 
  • Standard clause for contracts involving the federal government.
  • These clauses add provisions that apply to almost all insurance.
  • Change the clauses only if your legal counsel approves.   
 
If the Contractor is Another Oregon State Agency. The agencies understand that each is insured with respect to tort liability by the State of Oregon Insurance Fund, a statutory system of self-insurance established by ORS 278, and subject to the Oregon Tort Claims Act (ORS 30.260 - 30.300).  Each agency agrees to accept that coverage as adequate insurance of the other party with respect to personal injury and property damage.
 
Self-Insurance Loss Allocation. The Agencies agree that any tort liability claim, suit, or loss resulting from or arising out of the parties’ performance of and activities under this contract shall be allocated, as between the state agencies, in accordance with law by the Risk Management Division of the Department of Administrative Services for purposes of their respective loss experiences and subsequent allocation of self-insurance assessments under ORS 278.435. Each party to this contract agrees to notify the Risk Management Division and the other agency in the event it receives notice or knowledge of any claims arising out of the performance of, or the agencies’ activities under this contract.
 
  • We are all part of one happy family and cannot sue each other (even if you want to).
  • Standard clauses for interagency agreements involving another Oregon State Agency.
Additional information  on indemnification/hold harmless clauses.
 
 
Revised 4/03
 
Page updated: December 12, 2006

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