3-03 - Exhibit C - Sample Agreement, Solicitation 26-1334.pdf

EXHIBIT D

ALLOWABLE EXPENSES

SERVICES CONTRACT

Contract No. [########]

This Services Contract (this “Contract”) is between the City of Bend, Oregon (the “City”) and [Contractor Legal Name] (the “Contractor”) for general services.

RECITALS

A The City desires to enter into this Contract for stretching and functional movement coaching services for the City of Bend Police Department.

B The Contractor has the training, ability, knowledge, and experience to provide the services desired by the City.

C The Contractor was selected through formal request for proposals number 26-1334 issued

February 3, 2025.

TERMS OF AGREEMENT

1 Effective Date; Duration

This Contract shall become effective when signed by both parties and approved by the City’s legal counsel. Unless sooner terminated, this Contract shall expire on [Month DD, YYYY].

This Contract may be renewed for up to 4 additional years if agreed upon by both parties.

Termination or expiration shall not extinguish or prejudice the City’s right to enforce this Contract with respect to any default or defect in performance that has not been cured.

2 Services

The Contractor shall provide the City of Bend Police Department with stretching and functional movement classes and coaching services, which are described in more detail in the scope of work attached as Exhibit A (the “Work”). The Contractor shall perform the Work in accordance with Exhibit A.

3 Consideration

(a) The City shall pay the Contractor as set out in attached Exhibit B, but the total payment under this Contract shall not exceed $##,### (the “Contract Price”). The Contract Price may be exceeded only upon prior written increase in the Work, accompanied by written authorization for an increase in fee from the City Manager. If there is no change in the Work, the Contractor shall complete all of the Work identified within the Contract Price.

Any known additional or optional tasks are listed in Exhibit B.

(b) The Contractor shall send the City an invoice each month setting forth the fee due for that month and include a detailed summary of the work performed during the pay period. The City will review all submitted invoices promptly and shall pay all undisputed amounts within 30 days of the City’s receipt of the invoice.

(c) The Contractor shall submit invoices to the City of Bend, Attention: Accounts Payable, P.O. Box 1458, Bend, Oregon 97709 or via email to ap@bendoregon.gov. If an invoice is delivered on a non-business day, the invoice is considered received on the next business day.

(d) The Contractor shall reference the Contract Number and the Project Number on each invoice as appropriate.

(e) [The Contractor shall not increase its rates and/or unit prices for the first year of this Contract. The Contractor shall provide the City notice of any proposed increase in its rates and/or unit prices not less than 60 days prior to the anniversary date of this Contract. Any increase in rates and/or unit prices is limited to the lesser of the increase in Contractor’s published rates charged to all clients for services similar to those Services described in this Contract, or the increase in the Consumer Price Index (CPI) (All Urban Customers), West – Size B/C as the anniversary date over the index prior to the commencement date of this Contract. Any increases in Contractor’s rates and/or unit prices are subject to review and acceptance by the City, such acceptance will be made in the form of a contract amendment which must be fully executed prior to performance of the Services at the new rates and/or unit prices.]

4 Standard of Care

The Contractor shall provide services with the degree of skill and diligence normally employed by contractors performing the same or similar services at the time the services are performed. The Contractor shall, at all times during the term of this Contract, be duly licensed to perform the Work, and if there is no licensing requirement for the Work, be duly qualified and competent.

5 Termination The parties may terminate this Contract as follows:

(a) This Contract may be terminated at any time by mutual consent of both parties.

(b) The City may, at its sole discretion, terminate this Contract, in whole or in part, upon 30 days’ notice to the Contractor, in writing and delivery by certified mail or in person.

(c) The City may terminate this Contract, effective upon delivery of written notice to the Contractor, or at a later date established by the City under any of the following conditions:

(1) City funding is not obtained and continued at levels sufficient to pay for the Contractor’s Work. This Contract may be modified to accommodate a reduction in funds. In determining the availability of funds, the City may use the biennial budget adopted or modified by the City Council.

(2) If federal, state, or City regulations or guidelines are modified, changed, or interpreted in such a way that the Work is no longer allowable or appropriate for purchase under this Contract or no longer eligible for the funding proposed for payments authorized by this Contract.

(3) If any license or certificate required by law or regulation to be held by the Contractor to provide perform the Work required by this Contract is for any reason denied, revoked, or not renewed.

(d) Any termination of this Contract is without prejudice to any obligations or liabilities of either party already accrued prior to the termination.

(e) The City by written notice of default (including breach of contract) to the Contractor may terminate the whole or any part of this Contract:

(1) If the Contractor fails to provide services called for by this Contract within the time specified or any extension of the Contract, or

(2) If the Contractor fails to perform any of the other provisions of this Contract, or so fails to pursue the Work as to endanger performance of this Contract in accordance with its terms, and after receipt of written notice from the City, fails to correct the failures within ten days or such longer period as the City may authorize.

(f) The Contractor may terminate this Contract upon 30 days’ written notice to the City if the City fails to pay the Contractor pursuant to the terms of this Contract and the City fails to cure within 30 business days after receipt of the Contractor’s notice, or such longer period of cure as the Contractor may specify in the notice.

6 Access to Records – Files; Confidential Information

The Contractor shall maintain all books, documents, papers, and records relating to this Contract for at least seven years following completion of the project. The Contractor shall maintain any other records pertinent to this Contract in such a manner as to clearly document the Contractor’s performance. The City, state, and federal government, and their duly authorized representatives shall have access to the books, documents, papers, and records of the Contractor which are directly pertinent to this specific Contract for the purpose of making audit, examination, excerpts, and transcript. The Contractor agrees that all files or other documents generated or in the possession of the Contractor related to the Contractor’s delivery of services are the property of the City and the Contractor shall make them available to the City upon the City’s request. The Contractor understands the nature of the project(s) means that the Contractor may be privy to information that is confidential, proprietary, or sensitive in nature, which information must not be disclosed to any third person or entity without the consent of the City or at the City’s direction, either during the term of this Contract or after its termination. Likewise, any analysis or commentary provided by the Contractor of a confidential or sensitive nature must not be released or disclosed to any person without the consent or direction of the City.

7 Independent Contractor; Responsibility for Taxes and Withholdings

(a) The Work to be rendered under this Contract is that of an independent contractor. The Contractor is not an officer, employee, or agent of the State or Department as those terms are used in Oregon Revised Statutes (“ORS”) 30.265 of the Oregon Tort Claims

Act, and the Contractor is not to be considered an officer, employee, or agent of the City for any purpose. The Contractor shall be solely and entirely responsible for its acts and for the acts of its agents or employees during the performance of this Contract. The Contractor is an independent contractor for purposes of the Oregon Workers’ Compensation Law (ORS Chapter 656) and is solely liable for workers’ compensation coverage under this Contract. The City does not have the right of direction or control of the manner in which the Contractor delivers the Work under this Contract or exercise any control over the activities of the Contractor.

(b) No Agency, Partnership, or Joint Venture/Independent Contractor – Neither the City or the Contractor, by virtue of this Contract, is a partner or joint venture with the other party in connection with the activities carried out under this Contract.

(c) This Contract is not intended to entitle the Contractor nor any of its agents to any benefits generally granted to City employees. Without limitation, but by way of illustration, the benefits which are not intended to be extended by this Contract are vacation, holiday and sick leave, other leaves with pay, tenure, medical and dental coverage, life and disability insurance, overtime, social security, workers’ compensation, unemployment compensation or retirement. The Contractor shall be responsible for all federal and state taxes applicable to compensation or payment paid to Contractor under this Contract.

8 Ownership of Work Product

All work product of Contractor under this Contract shall be the exclusive property of the City. The Contractor waives and releases all rights relating to the use of the work under this Contract, including any rights arising under 17 U.S.C. §106A. Reuse of work product by the City or others for purposes outside the scope of work is without liability to Contractor.

9 Protection of Property and Responsibility for Damage

(a) The Contractor shall exercise due care to avoid injury to property and infrastructure, including but not limited to, existing travel lanes, medians, curbs, legally parked vehicles, signs, and adjacent property. The Contractor shall notify the City’s project manager as soon as practical but within 24 hours of any incidents, accidents or damage resulting from the Work under this Contract.

(b) The Contractor shall repair all damage resulting from the Work under this Contract. The Contractor shall complete repair work within a two-week period after written notification by the City’s project manager or designee. An extension of time may be approved by the City’s project manager or designee in excess of the two-week period if requested in writing by Contractor. The Contractor’s request shall state the reasons and period of time for the request. Any repair work not completed by the Contractor within the designated time period may be completed by the City and the cost deducted from monies due to the Contractor.

(c) This section 9 is not to be construed as to relieve the Contractor of responsibility for damage to private facilities.

10 Indemnification

The Contractor shall defend, indemnify, and hold the City, its officers, agents, employees, and volunteers harmless against all liability, claims, losses, demands, suits, fees, and judgements (collectively known as “Claims”) that may be based on, or arise out of damage or injury (including death) to persons to property caused by or resulting from any act or omission sustained in connection with the performance of this Contract or by conditions created thereby or based upon violation of any statute, ordinance, or regulation. This indemnification required shall not apply to Claims caused by the sole negligence of willful misconduct of the City, its officers, agents, employees, and volunteers. The Contractor agrees that it is not an agent of the City and is not entitled to indemnification and defense under ORS 30.285 and ORS 30.287.

11 Insurance

(a) The Contractor shall purchase and maintain at their own expense the insurance noted below subject to review and acceptance by the City. All insurance shall apply on a primary, non-contributary basis and remain in effect for the duration of the Contract term. Any policy written on a ‘claims made’ basis may only be done so with the written approval and authorization of the City and coverage written in this manner shall extend for 24 months past completion and acceptance of the Contractor’s work or services.

Insurance certificates and insurance questions shall be emailed to the City’s insurance email at: insurance@bendoregon.gov.

(b) Commercial general liability insurance with minimum coverage in effect of $2,000,000 per incident, claim, or occurrence and $2,000,000 in aggregate. The policy shall include coverage for personal injury, bodily injury, advertising injury, property damage, premises, operations, products, completed operations, employer’s practices liability, and contractual damages. The Contractor shall remain fully responsible and liable for any claims resulting from the negligence or intentional misconduct of the Contractor, its subcontractors, and their officials, agents, and employees in performance of this Contract, even if not covered by, or in excess of insurance limits.

(1) Commercial general liability coverage shall name, by certificate and endorsement the City, its officers, agents, employees, and volunteers as additional insureds with respect to the Contractor’s work or services provided under this Contract.

(c) Commercial automobile (fleet) liability insurance with minimum combined single limit of $2,000,000 covering all owned, non-owned, and hired vehicles. This coverage shall be written in combination with the commercial general liability insurance with separate limits for commercial automobile liability and commercial general liability.

(d) Workers’ compensation insurance as required by ORS Chapter 656 and meeting the minimum requirements therein. The Contractor shall ensure that each subcontractor obtains and maintains workers’ compensation insurance and that the carrier notifies the State of Oregon or files a guaranty contract with the State of Oregon Workers’ Compensation Division before performing work.

(e) The Contractor shall provide proof of required coverages by acceptable certificate of insurance and signed endorsement from the carrier(s). The certificate and endorsement shall provide that there will be no cancellation, termination, material change, or reduction in limits of the insurance coverage without a minimum 30-day written notice to the City. The certificate and endorsement shall also state the deductible or self-insured retention level.

12 Subrogation

The Contractor grants waiver of subrogation to the City, its officers, agents, employees, and volunteers for any claims arising out of the Contractor’s work or service. Further, the Contractor agrees that in the event of a loss due to any of the risks for which it has agreed to provide insurance, recovery by the Contractor shall be solely with their insurance carrier.

The Contractor also grants to the City on behalf of any insurer providing coverage to either the Contractor or the City with respect to the work or services of the Contractor a waiver of any right to subrogation which any insurer or the Contractor may acquire against the City by virtue of the payment of any loss under such insurance coverage.

13 Nondiscrimination – ADA Compliance

The Contractor agrees to comply with Title VI of the Civil Rights Act of 1964, with Section V of the Rehabilitation Act of 1973, and with all applicable requirements of federal and state civil rights and rehabilitation statutes, rules, and regulations. The Contractor also shall comply with the Americans with Disabilities Act (“ADA”) of 1990, as amended by the ADA Amendments Act (ADAAA) of 2008 and any subsequent amendments (42 U.S.C. § 12101, et seq.) (Pub No. 101-336), ORS 659A, and all regulations and administrative rules established pursuant to those laws. The Contractor agrees to comply with ADA in its employment and nondiscrimination practices, and that it shall perform its contractual obligations consistent with ADA federal requirements/regulations, state disability and accessibility law and requirements, and applicable regulations and administrative rules established pursuant to those laws.

14 Successors and Assigns

The City and the Contractor each binds itself, its successors, assigns, and legal representatives to the other party to this Contract and to the successors, assigns, and legal representatives of such other party with respect to all covenants of this Contract. The Contractor shall not assign or transfer its interests in this Contract without written consent of the City, which consent may be withheld in the City's sole, subjective discretion. The rights under this Contract may not be transferred or assigned by operation of law, change of control or merger without the prior written consent of the City. The City may rescind this Contract if transferred or assigned by operation of law, change of control or merger, or without the prior written consent of the City.

15 Force Majeure

The Contractor shall not be held responsible for delay or default caused by fire, riot, acts of God, and war which is beyond the Contractor’s reasonable control. The Contractor shall, however, make all reasonable efforts to remove or eliminate such a cause of delay or default and shall, upon the cessation of the cause, diligently pursue performance of its obligations under this Contract.

16 No Third-Party Beneficiaries

The City and the Contractor are the only parties to this Contract and are the only parties entitled to enforce its terms. Nothing in this Contract gives, is intended to give, or shall be construed to give or provide any benefit or right, whether directly, indirectly, or otherwise, to third persons unless such third persons are identified by name herein and expressly described as intended beneficiaries of the terms of this Contract.

17 Waiver

The City’s failure to enforce a provision of this Contract shall not constitute a continuing waiver, shall not constitute a relinquishment of the City’s right to performance in the future, and shall not operate as a waiver of the City’s right to enforce any other provision of this Contract.

18 Limitation on Authority

The City retains its authority to execute all applications, agreements, and other documents relating to this Contract. The Contractor has no right or authority, express or implied, to commit or otherwise obligate the City or any of its partners, except as permitted by the express terms of this Contract, or as authorized in writing.

19 Attorney Fees & Governing Law

In the event an action, suit of proceeding, including appeals, is brought for failure to observe any of the terms of this Contract, each party shall be responsible for that party’s own attorney fees, expenses, costs, and disbursements for any action, suit, proceeding or appeal.

The provisions of this Contract shall be construed in accordance with the provisions of the laws of the State of Oregon. Any claim, action, suit, or proceeding between the City and the Contractor arising from or relating to this Contract shall be brought and conducted solely and exclusively within the Circuit Court of Deschutes County, Oregon, or, if the claim must be brought in a federal forum, the United States District Court for the District of Oregon.

The Contractor hereby consents to in personam jurisdiction of said courts.

20 ORS 279A.125 Preference for Recycled Materials

The Contractor will use where applicable, recycled materials if (a) the recycled product is available, (b) the recycled product meets applicable standards, (c) the recycled product can be substituted for a comparable non-recycled product, and (d) the recycled product’s costs do not exceed the costs of non-recycled products by more than five percent.

21 Compliance with Law

The Contractor shall comply with applicable federal, state, and local laws and ordinances applicable to the Work under this Contract. This Contract incorporates the provisions required to be in a contract of this type by ORS 279B.200 through 279B.235 as further set forth in attached Exhibit C.

22 Merger Clause

This Contract and attached exhibits constitute the entire agreement between the parties.

No waiver, consent, modification, or change of term of this Contract shall bind either party unless in writing and signed by both parties. The waiver, consent, modification, or change, if made shall be effective only in the specific instance and for the specific purpose given. There are no understandings, agreements, or representations, oral or written, not specified herein regarding this Contract. The Contractor by signature of its authorized representative hereby acknowledges that he/she has read this Contract, understands it, and agrees to be bound by its terms and conditions.

23 Key Personnel

Contractor acknowledges and agrees that the City selected Contractor for award of this Contract because of special qualifications of Contractor’s key personnel. The Contractor shall not reassign or transfer key personnel to other duties or positions such that they are no longer available to provide the City with the expertise, judgment, and personal attention at the level proposed without first obtaining the City’s prior written consent to such reassignment or transfer. The City shall have the right to interview, review the qualifications of, and approve or disapprove any proposed change in key personnel.

24 Notices

Project correspondence shall be directed to the City’s project manager. Insurance certificates and insurance questions shall be emailed to the City’s insurance email at:

insurance@bendoregon.gov. All notices and demands of a legal nature that either party may be required or may desire to serve upon the other party shall be in writing and shall be served upon the other party by personal service, by facsimile transmission, E-Mail followed by mail delivery of the original of the notice, by overnight courier with proof of receipt, or by certified mail, return receipt requested, postage prepaid, addressed as follows:

[Contractor Legal Name] Attn: [First and Last Name or Department/Division] [Street Address] [City, State, Zip] Phone [###-###-####] Email: [email address]

City of Bend Attn: Eric King, City Manager 710 NW Wall Street Bend, Oregon 97703 Phone: 541-388-5505 Fax: 541-385-6676 Email: eking@bendoregon.gov

With a copy to:

City of Bend Attn: City Attorney 710 NW Wall Street Bend, Oregon 97703 Phone: 541-388-5505 Fax: 541-385-6676 Email: legalnotice@bendoregon.gov

Service by mail shall be deemed complete on the date of actual delivery or three business days after being sent via certified mail. Service by facsimile transmission or E-Mail shall be deemed served upon receipt of the facsimile or E-Mail, followed by mail delivery.

25 Severability

If any provision of this Contract is held illegal or unenforceable in any respect, the enforceability of the provision in any other respect and of the remaining provisions will not be impaired unless the illegal or unenforceable provisions affects a significant right or responsibility, and if negotiations fail, may terminate the Contract.

26 Counterparts

This Contract may be executed in several counterparts, all of which taken together shall constitute one contract binding on all parties, notwithstanding that all parties are not signatories to the same counterpart. Each copy of this Contract so executed shall constitute an original.

27 Amendments

The parties may amend this Contract by a written amendment properly executed by both parties. Contract amendments shall be effective only if in compliance with Bend Code

1.55.050 Sections C and D.

28 Pay Equity

As required by ORS 279B.235, the Contractor shall comply with ORS 652.220 and shall not discriminate against any of the Contractor's employees in the payment of wages or other compensation for work of comparable character, the performance of which requires comparable skills, or pay any employee at a rate less than another comparable work, based on an employee’s membership in a protected class.

The Contractor must comply with ORS 652.220 as amended and shall not unlawfully discriminate against any of the Contractor's employees in the payment of wages or other compensation for work of comparable character on the basis of an employee's membership in a protected class. “Protected class” means a group of persons distinguished by race, color, religion, sex, sexual orientation, national origin, marital status, veteran status, disability, or age. The Contractor’s compliance with this section constitutes a breach that entitles the City to terminate this Contract for cause.

The Contractor may not prohibit any of the Contractor’s employees from discussing the employee’s rate of wage, salary, benefits, or other compensation with another employee or another person. The Contractor may not retaliate against an employee who discusses the employee’s rate of wage, salary, benefits, or other compensation with another employee or another person.

29 Compliance with Tax Laws

The Contractor represents and warrants that the Contractor has complied with the tax laws of this state and political subdivisions of this state including but not limited to ORS 305.620 and ORS chapters 315, 317, and 318.

The Contractor agrees to continue to comply with the tax laws of this state and political subdivisions of this state during the term of this Contract. Failure of the Contractor to comply with the tax laws of this state or a political subdivision of this state before the Contractor executes this Contract or during the term of this Contract, shall be considered a default for which the City may terminate this Contract and seek damages and other relief available under this Contract or under applicable law.

signatures to immediately follow

Approved and authorized for signature by City Council acting as the Local Contract Review Board on [Month DD, YYYY].

CITY OF BEND, OREGON

By:

[First and Last Name], [Title] Date

APPROVED AS TO FORM:

City Attorney’s Office Date

[CONTRACTOR LEGAL NAME]

[First and Last Name], [Title] Date

City Contracting & Funding Authorizations:

[First and Last Name], [Title (Director)] Date

City of Bend, Oregon

[First and Last Name], [Title (Funding Manager)] Date

[First and Last Name], [Title (Project Manager)] Date

[First and Last Name], [Title (Procurement)] Date