00002391 RFP Attachment H Sample Contract~1.docx

City of Portland Contract No. 30000000 for XYZ

As authorized by City Ordinance _____, this Contract is made effective on ___________ (“Effective Date”) by and between the City of Portland (“City”), a municipal corporation of the State of Oregon, and _____________ (“Contractor”), a(n) ________ corporation, by and through their duly authorized representatives. This Contract may refer to the City and Contractor individually as a “Party” or jointly as the “Parties.”

The initial Term of this Contract shall be from the Effective Date through __________, with ____ additional option years, for a total term not to exceed ten years. The not-to-exceed value of this Contract shall be $_______________ for the initial Term.

Recitals:

WHEREAS, to further its government operations, the City of Portland desires to ________ (the “Project”); and

WHEREAS, the City issued Request for Proposal (RFP) # ________ for ________

WHEREAS, Contractor, in its Proposal dated ________ and submitted in response to the City’s RFP represented that it has the knowledge, experience, and expertise in ________ for ________; and

WHEREAS, the City selected Contractor based on its Proposal;

THE PARTIES HEREBY AGREE AS FOLLOWS:

DEFINITIONS (09/17)

General Definitions. These definitions apply to the entire Contract, subsequent Amendments, and Change Orders, unless modified in an Amendment. If any definition contains a substantive provision conferring rights and/or obligations upon a Party, then effect shall be given to the substantive provision.

“Acceptance” means the Deliverable demonstrates to the City’s satisfaction that the Deliverable conforms to and operates according to the Acceptance Criteria, and if required, has successfully completed Acceptance Testing, and for Deliverables not requiring Acceptance Testing that the Deliverable conforms to the Acceptance Criteria or the City’s requirements.

“Acceptance Certificate” means a written instrument by which the City notifies Contractor that a Deliverable has been Accepted or Accepted with exceptions, and Acceptance Criteria have been met or waived, in whole or in part.

“Acceptance Criteria” means functionality and performance requirements determined by the City, based upon the Specifications, which must be satisfied prior to City’s Acceptance of a Deliverable, or the System. City and Contractor shall agree upon written Acceptance Criteria.

“Acceptance Date” means the date on which the City issues an Acceptance Certificate for the System or a Deliverable.

“Acceptance Test” means the evaluation and testing method, procedures, or both, that are used to determine whether or not the System or a Deliverable requiring Acceptance Testing performs in accordance with the Acceptance Criteria.

“Access” means the ability to gain entry to the System for the purpose of Use.

“Affiliates” means, for Contractor, any individual, association, partnership, corporation or other entity controlling, controlled by, or under common control. The term “control” means the power to direct or cause the direction of the management and policies of an individual or entity, whether through the ownership of voting securities, by contract, agreement or otherwise.

“Amendment” means a written document required to be signed by both Parties when in any way altering the Master Terms and Conditions of the Contract or substantially altering a Statement of Work.

“Business Day” means a twenty-four hour day, excluding weekends and City holidays, beginning at midnight and ending at midnight twenty-four hours later.

“Calendar Day” means a twenty-four hour day, including weekdays, weekends and holidays, beginning at midnight and ending at midnight twenty-four hours later.

“Change Order” means a document, agreed and signed by both Parties, that changes an existing Statement of Work.

“City Data” means all data collected, uploaded, used, processed, stored, or generated as the result of the City’s Use of the Software.

“Confidential Information” means any information that is disclosed in written, graphic or machine-recognizable form and is marked, designated, labeled or identified at the time of disclosure as being Confidential or its equivalent, or, if the information is in verbal form, it is identified as Confidential or proprietary at the time of disclosure. Information shall always be considered Confidential Information, whether or not it is marked or identified as such, if it is described by one or more of the following categories: (1) financial, statistical, personnel, human resources data or Personally Identifiable Information as described in the Oregon Consumer Information Protection Act; (2) business plans, negotiations, or strategies; (3) unannounced pending or future products, services, designs, projects or internal public relations information; (4) trade secrets, as such term is defined by Oregon Public Records laws and the Uniform Trade Secrets Act ORS 646.461 to 646.475; (5) information which is exempt under Oregon Public Records Laws; (6) attorney/client privileged communications; (7) information which is exempt per federal laws (including but not limited to copyright, HIPAA); and (8) information relating to or embodied by designs, plans, configurations, specifications, programs, or systems including without limitation, data and information systems, any software code and related materials and processes, Customizations, Configurations, Updates, Upgrades; and any Documentation. Confidential Information does not include any information that: is or becomes publicly known through no wrongful or negligent act of the receiving Party; is already lawfully known to the receiving Party without restriction when it is disclosed; is, or subsequently becomes, rightfully and without breach of this Contract or any other agreement between the Parties or of any applicable protective or similar order, in the receiving Party’s possession without any obligation restricting disclosure; is independently developed by the receiving Party, as shown by reasonable written documentation, without breach of this Contract; or is explicitly approved for release by written authorization of the disclosing Party.

“Configuration” means the use of administrative functions provided in the Software to adapt the Software to City-specific requirements, revisions or modifications to the Software to enhance features and functionality but which do not include changes to the Source Code, or in the case of Equipment, adapting the Equipment to City Specifications.

“Contract” means the Master Terms and Conditions including all exhibits, attachments and schedules and their constituent parts listed in the Order of Precedence or incorporated by reference.

“Contract Price” means the not-to-exceed price agreed upon by the Parties for all Products and Services.

“Coverage Hours” means those hours specified in this Contract during which Contractor is to provide Maintenance.

“Customization” means any modification to or adaptation of Equipment, or in the case of Software, any new or modified code, prepared, created, or developed by Contractor at the City’s request, or by the City in conjunction with or as authorized by Contractor.

“Deliverable(s)” means the Products or Services or documents or tangible work products described in the Statement of Work to be provided to the City by Contractor under this Contract.

“Delivery of Products” means a Product has been received at the location specified in this Contract.

“Documentation” means User manuals and other written materials in any form that describe the features or functions of the Products and System, including but not limited to published specifications, online instructions and help, marketing materials, technical manuals, and operating instructions provided by Contractor to the City, or readily available to the public, or as required to be produced by Contractor subject to the terms of this Contract.

“Equipment” means any hardware, machinery, device, tool, computer, computer component, computer system, including add-ons, or peripherals of tangible form together with the necessary supplies for upkeep and maintenance, and other apparatus necessary for the proper implementation and operation of the System, to be provided to the City by Contractor under this Contract.

“Error” means any defect, problem, condition, bug, or other partial or complete inability of a Product or component thereof to operate in accordance with the applicable Specifications.

“Final Acceptance” means the City has determined that the complete System and/or all Deliverables have successfully completed Acceptance Testing, which demonstrates to the City’s satisfaction that the System and/or all Deliverables conform to and operate according to the Acceptance Criteria, applicable Documentation, and Contractor’s representations; and that for Deliverables not requiring Acceptance Testing, that the Deliverables conform to the Acceptance Criteria or the City’s specified requirements.

“Force Majeure Event” means an exceptional and unavoidable occurrence beyond the reasonable control of the affected Party, such as, riots, epidemics, war, government regulations, labor disputes, fire, natural phenomena, or other causes beyond such Party’s reasonable control.

“Go Live” means the initiation of the System, or a portion or phase thereof, into full production mode after the successful completion of Acceptance Testing.

“Hosting” means Contractor’s provision of remote Access to, and Use of, Software not resident on the City’s servers.

“Illicit Code” means (a) any hidden files in Software, programming, or other item delivered to the City; (b) any Software, programming, or other item delivered to the City that can replicate, transmit, or activate itself without the knowledge and control of an authorized City employee; (c) any Software, programming, or other item delivered to the City that can alter, damage or erase any data or computer programs without the knowledge and control of an authorized City employee; (d) any Software, programming, or other item delivered to the City that contains any key, node lock, time-out or other function, restricts or may restrict use or access to any programs or data (including those. based on residency on a specific hardware configuration, frequency or duration of use or any other limiting criteria. It is “Illicit Code” whether implemented by electronic, mechanical or other means.

“Intellectual Property Rights (IPR)” means any patent rights, copyrights, trade secrets, trade names, service marks, trademarks, trade dress, moral rights, know-how and any other similar rights or intangible assets to which rights of ownership accrue, and all registrations, applications, disclosures, renewals, extensions, continuations, or reissues of the foregoing now or hereafter in force.

“Interface” means software, hardware, or a device to enable communication between separate computer systems, software programs, hardware, devices, or a user.

“Key Personnel” means the specific individuals identified in Section 3.14 to fill Key Positions.

“Key Position” means a job position critical to the success of the Project as identified in Section 3.14 of this Contract.

“Maintenance” means Services provided by Contractor to the City to keep the System conforming to the Specifications and to respond to requests by the City.

“Maintenance Fee” means the fee paid by the City for Maintenance.

“Maintenance Period” means the time period when Contractor provides Maintenance to the City.

“Maintenance Request” means a request from the City to Contractor for Maintenance or technical support.

“Malware” means any virus, Trojan horse, spyware, or other program routine or data designed to erase, disable or otherwise harm any hardware, software, or data.

“Manufacturer’s Warranty” means a written statement to the City from Contractor or passed through Contractor from a third party, that one or more Products manufactured by the third party and provided by Contractor will operate at the required Specifications, functionality and performance level.

“Manufacturer’s Warranty Period” means the time period during which a Manufacturer’s Warranty is valid and enforceable by the City.

“Master Terms and Conditions” means the body of text from the preamble through the signature page of this Contract.

“Material Breach” means any breach of this Contract that causes, caused, or may cause substantial harm to the non-breaching Party or substantially deprives the non-breaching Party of the benefit it reasonably expected under this Contract.

“Module” means a standalone piece of code within the Software that typically provides specific and cohesive functionality.

“Object Code” means the Software in a machine-readable form that is not convenient to human understanding of the program logic, and that can be executed by a computer using the appropriate operating system without compilation or interpretation. Object Code specifically excludes Source Code.

“Open Source Software” means any computer program for which the license provides the rights to Access and Use the program, view and change the source code, distribute exact copies, distribute modified copies and frees parties from any obligation to pay license fees or royalties.

“Operating System Software” means any computer program product that is installed on, and is a component integral to the function of, the Equipment.

“PCI” means Payment Card Industry.

“PCI DSS” means the Payment Card Industry Data Security Standard, the global data security standard adopted by the payment card brands for all entities that accept, process, store, or transmit payment card information and which are required to maintain a secure environment.

“Personally Identifiable Information (PII)” means information that can be used on its own or with other information to identify, contact, or locate a single person, or to identify an individual in context, as described in the Oregon Consumer Information Protection Act.

“Product(s)” means Software, Equipment, and supplies.

“Product Warranty Period” means the period of free Maintenance provided by Contractor for the Products.

“Project” means the overall delivery of the System and all related Services including, without limitation, design, development, integration, implementation, testing, support and Maintenance, any of which Contractor may be providing in whole or in part.

“Proposal” means Contractor’s response to the City’s RFP referenced on page one of this Contract.

“Redundant System” means the System or Software used in a non-production environment such as development, training, testing, or on a mirrored server for purposes of back up, archive, and disaster recovery purposes.

“Repair(s)” means to fix, patch, reprogram, or replace the System, or a component thereof, to eliminate Errors to the City’s satisfaction.

“Resolution Time” means the time elapsed between the response to a Maintenance Request and the time the Maintenance Request is resolved to the satisfaction of the City.

“Response Time” means the time elapsed between the time of notification to Contractor of a Maintenance Request, and the time Contractor acknowledges receipt of the City’s request.

“Services” means both ordinary and professional services performed by Contractor under this Contract.

“Software” means the object code version of any proprietary or licensed computer programs, firmware, applications, Operating System Software, or Modules thereof, which are components of the System and are licensed by Contractor to City pursuant to this Contract, including, without limitation, any custom Software or Customization, Updates, Upgrades and any related Documentation. Software may include Third Party Software and/or Open Source Software delivered by Contractor if required to produce and maintain the System.

“Source Code” means a complete copy, expressed in high-level (i.e., human-readable; not machine language or object code) computer language, of the Software which, when assembled or compiled, becomes the executable object code of the Software. Source Code shall include all material including but not limited to design documentation, Software documentation, reference manuals and documentation, libraries for the Software, and interface software, in any form (printed, electronic, or magnetic) and any other information necessary for a reasonably skilled programmer or analyst to understand, maintain, or modify the Software.

“Specifications” means the most current cumulative statement of capabilities, functionality, and performance requirements for the System and its components as set out in the Acceptance Criteria, Change Orders, the Statement of Work, Documentation, Contractor’s representations, Contractor’s Proposal and Proposal Clarifications, and the City’s Request for Proposals.

“Statement of Work” (SOW) means the written detailed specifications of the Product(s) and Services(s) to be delivered to the City by Contractor, including any Change Orders, subject to the terms and conditions of this Contract.

“Subcontractor” means any person or entity under the control of Contractor, other than an employee of Contractor, utilized by Contractor to perform all or part of this Contract.

“System” means the operational combination of all Products to be provided by Contractor to City under this Contract.

“Term” means the period of time that this Contract is in effect as stated on page one.

“Third Party Software” means software that a party other than Contractor owns and that is provided to City by Contractor under this Contract and that Contractor is authorized to license, or sublicense, or resell to the City subject to the original developer’s standard provisions.

“Update” means a change, modification, or enhancement to the Product(s) which improves performance or efficiency, but does not alter core functionality.

“Upgrade” means a change, modification, or enhancement to the Product(s) that Contractor makes available from time to time, which incorporates major new features or increases the core functionality and may be considered a new version. Software Upgrades may include Error correction, bug fixes, additions to, or patches to the Software.

“Use” means the City’s licensed operation of the Software.

“User” means any person employed or working on behalf of the City, its Bureaus, Divisions, Offices, Directors, and any person or entity under contract or authorized by the City to provide it with services and to use the City’s resources in whole or in part, in the course of assisting the City.

“Warranty” means the statements to the City from the Contractor as detailed in Sections 5.1 and 5.3.

ORDER OF PRECEDENCE

Order of Precedence. (09/17) In the event there is a conflict or ambiguity between the terms and conditions of one portion of this Contract with another portion of this Contract, the conflict or ambiguity will be resolved in accordance with the order of precedence below. This order of precedence designates which portion of the Contract takes precedence over the other for purposes of interpretation. Hyperlinks contained herein will not supersede or alter the Master Terms and Conditions. For the avoidance of doubt, no other terms and conditions will override the Parties’ obligations in the Confidentiality, Indemnification, or Choice of Law provisions in these Master Terms and Conditions. In this Contract the order of precedence shall be:

1. Amendments

2. Master Terms and Conditions and Appendix A

3. Exhibit A, Contractor’s Price

4. Change Orders

5. Exhibit B, Statement of Work

6. Exhibit __, City RFP # ________

7. Exhibit __, Contractor’s Proposal

8. Contractor’s Hyperlinks

GENERAL PROVISIONS

Term. (09/17) This Contract shall begin on the Effective Date and end upon the expiration date set forth on page one of this Contract unless terminated or extended under the applicable Contract provisions.

Point of Contact. (09/17) Contractor shall be the sole point of contact for the City with regard to this Contract and the System.

Written Notifications. (09/17) All notices to, and other written communication between the Parties shall be deemed received five (5) Business Days after being sent by first class mail, or upon receipt when sent by courier services, or by e-mail. All notices and written communications shall be sent to the Parties set forth below, or to such other places as they may designate by like notice from time to time:

Procurement Services

1120 SW Fifth Avenue, Room 750

Portland OR 97204

Each Party shall provide written notice of any changes to the above contacts within thirty (30) Calendar Days.

Changes to Contract

Amendment of the Contract. (09/17) Any changes to the provisions of this Contract shall be in the form of an Amendment. No provision of this Contract may be amended unless such Amendment is approved as to form by the City Attorney and executed in writing by authorized representatives of the Parties. If the requirements for Amendment of this Contract as described in this section are not satisfied in full, then such Amendments automatically will be deemed null, void, invalid, non-binding, and of no legal force or effect.

Change Orders to a Statement of Work. (09/17) The City and Contractor can agree to make changes, at any time to a Statement of Work in the form of a Change Order. Contractor agrees to timely alter the delivery of Products or Services accordingly. If such changes materially increase or decrease Contractor’s obligations, the Parties shall execute an Amendment to the Contract, and if the amount of such adjustment is not calculable as a function of hours or tasks, the Parties shall negotiate in good faith a modified price.

Access to City Facilities. (09/17) Contractor agrees that Contractor’s physical or remote access to the City facilities shall be subject to the security interests and controls necessary to protect public property, and the City shall not be liable for any delays necessary in granting Contractor access to any portion of the facilities or systems.

Delivery. (09/17) Contractor shall ship Products freight and insurance prepaid; F.O.B. the City’s designated location at the time indicated herein. Shipments will be complete and partial shipments will be avoided unless the City agrees in writing to the partial shipment in advance of such a shipment. The risk of loss or damage in transit shall be upon Contractor until a Product is received by the City at the delivery site. Delivery of Products shall not be deemed to be complete until an Acceptance Certificate has been issued by the City.

Delivery Schedule. (09/17) Contractor shall use best efforts to deliver Product(s) and/or Services(s) on time, in accordance with the scheduled delivery date as set forth in this Contract or an individual Statement of Work, Change Order, or Task Order.

City Reporting Requirements. (09/17) The City is required to track certain types of contract data for reporting purposes. Items which the City must report on may include, but are not limited to, Subcontractor utilization, Minority, Women, and Emerging Small Business (D/M/W/ESB) participation and Subcontractor/Supplier Payment. The City will enforce all diversity in workforce and D/M/W/ESB subcontracting commitments made by Contractor in its Proposal.

Payment. (09/17) Payment(s) shall be in accordance with the payment schedule set forth in Exhibit A: Contractor’s Price.

The Prevailing Wage Rates for this project shall be the rates published by Oregon Bureau of Labor and Industries (BOLI) on , including the applicable amendments dated , which are hereby incorporated into this Contract by this reference.

Payment shall be issued by the City net thirty (30) Calendar Days from receipt of a complete and acceptable invoice from Contractor. Contractor invoices must contain Contractor’s name and address; invoice number; date of invoice; Contract number and date; description of Products and/or Services; quantity, unit price, (where appropriate), and total amount; City-required reporting, if any, and the title and phone number of the person to whom payment is to be sent. The City may stipulate how line items are entered on an invoice to ensure compatibility with the City’s accounting and financial systems and to facilitate payment to Contractor.

The City makes payments via electronic fund transfers through the Automated Clearing House (ACH) network. To initiate payment of invoices, Contractor shall execute the City’s standard ACH Vendor Payment Authorization Agreement. Upon verification of the data provided, the ACH Vendor Payment Authorization Agreement will authorize the City to deposit payment directly into specified Contractor accounts with specified financial institutions. All payments shall be made in United States currency.

Payment of Taxes/Contractor Shall Withhold. (09/17) Contractor shall, at its own expense, timely (a) pay all salaries, wages, and other compensation to its employees; (b) withhold, collect, and pay all applicable federal, state, and local income taxes (domestic or foreign), FICA, Medicare, unemployment insurance and any other taxes or charges in connection with its employees; and (c) provide and pay for workers compensation insurance and any statutory or fringe benefits to employees. Contractor shall be solely responsible for all such obligations for its employees. Contractor shall also ensure that any Subcontractor shall comply with the foregoing obligations for its employees. The City shall have no duty to pay or withhold such obligations.

Audits and Access to Records

Records Retention. (09/17) Contractor shall maintain current financial records in accordance with Generally Accepted Accounting Principles (GAAP). Contractor agrees to maintain and retain supporting financial and Contract-related documents during the term of this Contract and for a period of six (6) years after the expiration or termination date of this Contract or until the resolution of all audit questions or claims, whichever is longer. All financial records, supporting documents, statistical records and all other records pertinent to this Contract shall be retained by Contractor for a minimum of three (3) years.

City Audits. (09/17) The City, either directly or through a designated representative, may conduct financial and performance audits of the billings and Services during the records retention period listed above. City audits shall be conducted in accordance with generally accepted auditing standards. Contractor shall provide the City’s internal auditor or external auditor, and their designees, with a copy of all reports, including any management letters issued as a result of the specified audits.

Access to Records. (09/17) The City internal auditor or City external auditor, and their designees, shall have the right, and will be given the necessary access, to review the work papers of Contractor audits if the City deems it necessary. Copies of applicable records shall be made available upon request.

Overpayment. (09/17) If an audit discloses that payments to Contractor were in excess of the amount to which Contractor was entitled, then Contractor shall repay the amount of the excess to the City. Under no circumstances will the payment of previous invoices constitute an acceptance of the charges associated with those invoices.

Independent Contractor. (09/17) Contractor is independent of the City and, accordingly, this Contract is not entered into as a joint venture, partnership, or agency between the Parties. No employment or agency relationship is or is intended to be created between the City and any individual representing Contractor. Employees of Contractor and any authorized Subcontractors shall perform their work under this Contract under Contractor's sole control.

Personnel.

Key Positions and Personnel. (09/17) For the period of performance until Final Acceptance has been completed, the Parties have identified Key Positions and Key Personnel as set forth in the table below, along with the percentage of their time to be allocated to the City’s Project until Go Live has occurred:

Substitution of Key Personnel. (09/17) Contractor shall make no substitutions of Key Personnel unless the substitution is necessitated by law, illness, death, resignation, or termination of employment. Contractor shall notify the City within ten (10) Calendar Days after the occurrence of any of these events.

Any substitutions or replacements of Key Personnel require the written approval of the City. Contractor shall provide the City with the maximum possible period of notice of substitution or replacement of Key Personnel in order to allow for background screening, fingerprint checks, and other investigation as may be required in this Section.

For any proposed substitute or replacement Key Personnel, Contractor shall provide the following information to the City: a detailed explanation of the circumstances necessitating the proposed substitution or replacement, a complete resume for the proposed substitute(s), and any additional information requested by the City. Proposed substitutes or replacements should have qualifications comparable to or better than those of the persons being replaced. No change in Contract prices may occur as a result of substitution or replacement of Key Personnel.

Security Requirements for Personnel. (09/17) If required by the City, Contractor shall conduct a criminal history/records check of all personnel that will have access to City information, systems, or payments and ensure ongoing security requirements for personnel are maintained.

Termination. (09/17) The following conditions apply to termination of this Contract. The City, on thirty (30) Calendar Days’ written notice to Contractor, may terminate this Contract for any reason deemed to be in the public interest. In the event of such termination, the City shall pay to Contractor the portion of the not-to-exceed price attributable to all Deliverables Accepted or Services performed and Accepted through the effective date of the termination.

Non-Availability of Funds. (*) Every obligation of the City under this Agreement is conditioned upon the availability of funds appropriated or allocated for the fulfillment of the City’s obligations. If funds are not allocated and available for the continuance of this Agreement, the Agreement may be terminated by the City at the end of the period for which the funds are available. No liability shall accrue to the City if this provision is exercised, and the City shall not be obligated or liable for any future payments as a result of termination under this paragraph.

Mutual Agreement. (09/17) The City and Contractor, by mutual written agreement, may terminate this Contract at any time.

Material Breach. (09/17) Either Party may terminate this Contract in the event of a Material Breach of this Contract by the other. Prior to such termination, however, the Party seeking the termination shall give to the other Party written notice to cure the Material Breach and of the Party's intent to terminate. If the Party has not entirely cured the Material Breach within thirty (30) Calendar Days of the notice, then the Party giving the notice shall have the option to: (a) terminate this Contract by giving a written notice of termination, (b) seek any remedies in this Contract, in law, or at equity, to the extent not otherwise limited by the terms of this Contract, or (c) any combination thereof.

Force Majeure. (09/17) Either Party may terminate this Contract due to a Force Majeure event as set forth in Section 5.10, Force Majeure.

Bankruptcy. (09/17) The City may terminate this Contract if Contractor: (a) becomes insolvent, makes a general assignment for the benefit of creditors; (b) suffers or permits the appointment of a receiver for its business or assets; (c) becomes subject to any proceeding under any bankruptcy or insolvency law whether domestic or foreign, and such proceeding has not been dismissed within a sixty (60) Calendar Day period; or (d) has wound up or liquidated, voluntarily or otherwise.

Software Code. (09/17) Inclusion of Illicit Code as set forth in Section 5.3.5, shall be considered a Material Breach of this Contract and no notice or cure period will apply. In addition to any other remedy available to it under this Contract with respect to any such Material Breach, the City reserves the right to pursue any civil and/or criminal penalties available to it against Contractor, including without limitation the Computer Fraud and Abuse Act, Deceptive Trade Practices & Consumer Protection Act, the Computer Crimes Law and any other remedy at law or equity.

Void Assignment. (09/17) In the event that Contractor assigns its obligations under this Contract to a third party in a manner other than as set forth in Section 5.7, the City shall have the option to terminate this Contract without any notice or cure period or further obligation to Contractor or the assignee, and promptly receive a refund for fees paid for Products delivered and/or Services performed by the third party.

Survival of License. (09/17) Termination of this Contract for any reason other than for Material Breach by the City shall not result in termination of any perpetual Software license granted hereunder.

Transition. (09/17) In the event the City replaces the System or any component of the System, Contractor shall make reasonable efforts to assist the City in the transition or migration to the new system, including but not limited to knowledge transfer from experienced personnel; cooperation with the City on development of a transition plan; the provision of Documentation and non-proprietary technical information, training and work materials, and reports; and the retrieval and migration of City data stored within the System in a format acceptable to the City.

Waiver. (09/17) No waiver of any breach of this Contract shall be held to be a waiver of any other or subsequent breach of this Contract. The failure of either Party to insist upon any of its rights under this Contract upon one or more occasions, or to exercise any of its rights, shall not be deemed a waiver of such rights on any subsequent occasions.

Severability. (09/17) Any section of this Contract which is held or declared void, invalid, illegal or otherwise not fully enforceable shall not affect any other provision of this Contract and the remainder of this Contract shall continue to be binding and of full force and effect. This Contract shall be binding upon and inure to the benefit of the City and its successors and assigns.

Business Tax Registration. (09/17) Contractor shall register for a City of Portland business license as required by Chapter 7.02 of the Code of the City of Portland prior to execution of this Contract. Additionally, Contractor shall pay all fees or taxes due under the Business License Law and the Multnomah County Business Income Tax (MCC Chapter 12) during the full term of this Contract. Failure to be in compliance may result in payments due under this Contract to be withheld to satisfy amount due under the Business License Law and the Multnomah County Business Income Tax Law.

EEO Certification. (09/17) Contractor shall be certified as an Equal Employment Opportunity Affirmative Action Employer as prescribed by Chapter 5.10 of the Code of the City of Portland and maintain its certification throughout the term of this Contract.

Non-Discrimination in Benefits. (09/17) Throughout the term of this Contract, Contractor shall provide and maintain benefits to its employees with domestic partners equivalent to those provided to employees with spouses as prescribed by Chapter 5.10 of the Code of the City of Portland.

Sustainability. (09/17) Pursuant to the City’s Sustainable City Principles, which direct City Bureaus to pursue long-term social equity, environmental quality, and economic vitality through innovative and traditional mechanisms, Contractor is encouraged to incorporate these Principles into its scope of work with the City wherever possible. Therefore, in accordance with the Principles and the City's Sustainable Procurement Policy, it is the policy of the City of Portland to encourage the use of products or services that help to minimize the human health and environmental impacts of City operations. Contractor is encouraged to incorporate environmentally preferable products or services into its work performance wherever possible. "Environmentally preferable" means products or services that have a lesser or reduced effect on human health and the environment when compared with competing products or services that serve the same purpose. This comparison may consider raw materials acquisition, production, manufacturing, packaging, distribution, reuse, operation, maintenance, or disposal of the product or service.

Packaging. (09/17) All packaging should be minimized to the maximum extent possible without compromising product quality. The City encourages packaging that is reusable, readily recyclable in local recycling programs, is made from recycled materials, and/or is collected by Contractor for reuse/recycling.

Permissive Cooperative Procurement. (09/17) Pursuant to ORS 279A.215, as additional consideration for this Contract, Contractor agrees to extend an option to purchase any Products or Services covered under this Contract at the same prices as are specified in Exhibit A: Contractor’s Price, and under the same terms and conditions, to all public agencies. Each public agency shall execute its own contract with Contractor and shall have the option to negotiate its own terms and conditions.

Rule of Construction/Contract Elements/Headings. (09/17) This Contract has been drafted by the City in the general format by the City as a convenience to the Parties only and shall not, by reason of such action, be construed against the City. Section headings are for ease of reference and convenience only and shall not affect or enter into the interpretation of any portion of this Contract.

News Releases and Public Announcements. (09/17) Contractor shall not use the City seal or other representations of the City in its external advertising, marketing, website, or other promotional efforts, nor shall Contractor issue any news release or public announcements pertaining to this Contract or the Project without the express written approval of the City. Such approval may be withheld in the City’s sole discretion. Contractor shall not use the City seal without specific written permission from the City Auditor.

Survival. (09/17) All obligations relating to Confidential Information; indemnification; publicity; representations and warranties; remedies; proprietary rights; perpetual licenses, including licensing obligations as stated in this Contract; limitation of liability; and obligations to make payments of amounts that become due under this Contract prior to termination or expiration shall survive the termination or expiration of this Contract and shall, to the extent applicable, remain binding and in full force and effect for the purposes of the ongoing business relationship by and between Contractor and the City.

STATUTORY REQUIREMENTS, PUBLIC RECORDS AND CONFIDENTIALITY

Governing Law and Jurisdiction. (09/17) This Contract shall be construed according to the laws of the State of Oregon without reference to the conflict of laws’ provisions. Any litigation between the City and Contractor arising under this Contract or out of work performed under this Contract shall occur, if in the state courts, in the Multnomah County Circuit Court, and if in the federal courts, in the United States District Court for the District of Oregon. Nothing herein shall be construed as a waiver of the state of Oregon’s or Authorized Purchaser’s sovereign or governmental immunity, whether derived from the Eleventh Amendment to the United States Constitution or otherwise, or of any defenses to Claims or consent to jurisdiction based thereon.

United Nations Convention. (09/17) To the maximum extent permitted by applicable law, the Parties agree that the provisions of the United Nations Convention on Contracts for the International Sale of Goods, as amended, and of the Uniform Computer Information Transactions Act, as it may have been or hereafter may be in effect in any jurisdiction, shall not apply to this Contract.

Public Records Request. (09/17) Contractor acknowledges that the City of Portland is subject to the Oregon Public Records Act and Federal law. Third persons may claim that the Confidential Information Contractor submitted to the City hereunder may be, by virtue of its possession by the City, a public record and subject to disclosure pursuant to the Oregon Public Records Act. The City’s commitments to maintain certain information confidential under this Contract are all subject to the constraints of Oregon and federal laws. All information submitted by Contractor is public record and subject to disclosure pursuant to the Oregon Public Records Act, except such portions for which Contractor requests and meets an exemption from disclosure consistent with federal or Oregon law. Within the limits and discretion allowed by those laws, the City will maintain the confidentiality of information.

4.4 Public Records. (04/20) The City will retain one (1) copy of any public records, including City Data, for the express purposes of complying with State of Oregon and Portland City Code public records and archiving laws.

0. City Data. (11/20) In accordance with the City’s Open Data Ordinance 188356, the City shall retain ownership of all City Data in the Software.

0. Open Data Requirements. (06/21) Pursuant to Portland City Council Ordinance 188356 the City is committed to the publication, open access, and widespread sharing of data collected and generated by the City, and by private sector companies, non-profit organizations, academia, and other parties working on behalf of the City. Contractor hereby acknowledges the goals of the Open Data Policy and shall work with the City to meet those goals. https://efiles.portlandoregon.gov/Record/10879908/.

0. Confidentiality.

Maintenance of Confidentiality. (09/17) Contractor shall treat as confidential any City Confidential Information that has been made known or available to Contractor or that Contractor has received, learned, heard or observed; or to which Contractor has had access. Contractor shall use City Confidential Information exclusively for the City’s benefit in the performance of this Contract. Except as may be expressly authorized in writing by the City, in no event shall Contractor publish, use, discuss or cause or permit to be disclosed to any other person such City Confidential Information. Contractor shall (1) limit disclosure of the City Confidential Information to those directors, officers, employees and agents of Contractor who need to know the City Confidential Information in connection with the City Project, (2) exercise reasonable care with respect to the City Confidential Information, at least to the same degree of care as Contractor employs with respect to protecting its own proprietary and confidential information, and (3) return immediately to the City, upon its request, all materials containing City Confidential Information, in whatever form, that are in Contractor's possession or custody or under its control. Contractor is expressly restricted from and shall not use the intellectual property of the City without the City’s prior written consent.

Scope. (09/17) This Contract shall apply to all City Confidential Information previously received, learned, observed, known by or made available to Contractor. Contractor's confidentiality obligations under this Contract shall survive termination or expiration of this Contract.

Equitable Relief. (09/17) Contractor acknowledges that unauthorized disclosure of City Confidential Information or misuse of a City computer system or network will result in irreparable harm to the City. In the event of a breach or threatened breach of this Contract, the City may obtain injunctive relief prohibiting the breach, in addition to any other appropriate legal or equitable relief. The Parties agree that, notwithstanding any other section of this Contract, in the event of a breach or a threatened breach of Contract terms related to Confidential Information, Intellectual Property Rights, or the security or misuse of a City computer system or network, the non-breaching Party shall be entitled to seek equitable relief to protect its interests, including but not limited to injunctive relief. Nothing stated herein shall be construed to limit any other remedies available to the Parties.

Contractor’s Confidential Information. (09/17) During the term of this Contract, Contractor may disclose to the City, certain Contractor Confidential Information pertaining to Contractor’s business. Contractor shall be required to mark CONFIDENTIAL with a restrictive legend or similar marking. If CONFIDENTIAL is not clearly marked, or the Contractor’s Confidential Information cannot be marked with a restrictive legend or similar marking or is disclosed either orally or by visual presentation, Contractor shall identify the Confidential Information at the time of disclosure or within a reasonable time thereafter. This Contract itself shall not be considered Confidential Information.

Discovery of Documents. (09/17) In the event a court of competent jurisdiction orders the release of Confidential Information submitted by Contractor, the City will notify Contractor of the request. The City shall allow Contractor to participate in the response at its own expense. The City will comply with any effective court order.

CONTRACTOR PERFORMANCE AND WARRANTIES

General Warranties. (09/17) Contractor makes the following warranties:

Capacity. (09/17) Contractor warrants it has the legal authority and capacity to enter into and perform this Contract.

Authority to Conduct Business. (09/17) Contractor warrants it is lawfully organized and constituted and duly authorized to operate and do business in all places where it shall be required to do business under this Contract, and that it has obtained or shall obtain all necessary licenses and permits required in connection with this Contract.

Disclosure of Litigation. (09/17) Contractor warrants that as of the Effective Date there are no suits, actions, other proceedings, or reasonable anticipation thereof, in any judicial or quasi-judicial forum that will or may adversely affect Contractor’s ability to fulfill its obligations under this Contract. Contractor further warrants that it will immediately notify the City in writing if, during the Term of this Contract, Contractor becomes aware of, or has reasonable anticipation of, any lawsuits, actions, or proceedings in any judicial or quasi-judicial forum that involves Contractor or any Subcontractor and that will or may adversely affect Contractor’s ability to fulfill its obligations under this Contract.

Conflict of Interest. (09/17) Contractor warrants it has no present interest and shall not acquire any interest that would conflict in any manner with its duties and obligations under this Contract.

Compliance with Applicable Law. (09/17) Contractor warrants it has complied and shall comply with all applicable federal, state, and local laws and regulations of its domicile and wherever performance occurs during the term of this Contract. Contractor warrants it is currently in compliance with all tax laws.

Public Contracts. (09/17) In addition to the requirements of Appendix A, Contractor shall observe all applicable state and local laws pertaining to public contracts. ORS Chapters 279A and 279B require every public contract to contain certain provisions. To the extent applicable, ORS 279B.220, 279B.230 and 279B.235 are incorporated into this Agreement by reference.

Compliance with Civil Rights Act. (09/17) Contractor warrants it is in compliance with Title VI of the Civil Rights Act of 1964 and its corresponding regulations as further described at: https://www.portland.gov/policies/administrative/civil-rights/adm-1801-city-portland-civil-rights-title-vi-plan.

Respectful Workplace Behavior. (09/17) The City is committed to a respectful work environment, free of harassment, discrimination and retaliation and other inappropriate conduct. Every individual has a right to work in a professional atmosphere where all individuals are treated with respect and dignity. The City’s HR Rule 2.02 covers all employees of the City as well as contractors, vendors or consultants who provide services to the City of Portland. Contractor warrants its compliance with terms and conditions HR 2.02 as further described at: http://www.portlandonline.com/Auditor/Index.cfm?c=27929

Grant Funding. (09/24). This Contract is currently not using grant funding. However, in the event that City acquires or uses grant funding to pay for any portion of this Contract, the City and Contractor agree to Amend the Contract to include the federally required terms and conditions. Contract Provisions for Non-Federal Entity Contracts Under Federal Awards can be found at: https://www.ecfr.gov/current/title-2/subtitle-A/chapter-II/part-200/appendix-Appendix%20II%20to%20Part%20200.These provisions shall be in addition to all other provisions in this Contract, and shall prevail over any conflicting terms.

Compliance with Non-Discrimination Laws and Regulations.

Compliance with Regulations. (09/17) Contractor shall comply with the regulations relative to nondiscrimination in Federally-assisted programs as set forth in Title 49, Code of Federal Regulations, Part 21, as they may be amended from time to time (hereinafter referred to as “the Regulations”), which are herein incorporated by reference and made a part of this Contract.

Contractor shall have the responsibility to inquire as to which agencies, if any, have a regulatory interest in this Contract and comply with any…