4_Attachment_C_Sample_Contract.pdf

4907-5561-3886.4

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OWNER’S REPRESENTATIVE SERVICES AGREEMENT

between

Hillsboro School District and

This Owner’s Representative Services Agreement (this “Agreement”) is made as of

________________ (the “Effective Date”), by and between Hillsboro School District, an Oregon public school district duly organized under ORS chapter 332 (“Owner”), and ______________, an Oregon __________________ (“Representative”), for owner’s representative services for the project more fully described in Exhibit 1 (the “Project”).

REPRESENTATIVE DATA

Representative attests that it is an independent contractor solely responsible for the Services

(as described in Exhibit 1) performed under this Agreement. Representative and its subconsultants, employees, and agents shall not be deemed employees of Owner.

Representative shall be responsible for all federal, state, and local taxes and any and all fees applicable to payments for the Services under this Agreement.

Full Business Name:

Address:

City, State, ZIP:

Business Telephone:

Facsimile:

Email:

Federal Tax Identification Number (TIN) or Social Security Number (SSN): ________________.

Representative must submit a completed “Request for Taxpayer Identification Number and

Certification” (Form W-9) with this signed Agreement. Payment information will be reported to the Internal Revenue Service under the name and TIN or SSN, whichever is applicable, provided by Representative.

Representative certifies under penalty of perjury that Representative is a

Sole Proprietor Corporation Limited Liability Company

Partnership Other [describe: ]

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AGREEMENT

In consideration of the mutual covenants contained in this Agreement, the parties agree as follows:

ARTICLE I

DEFINITIONS

1.1 “Amendment” means any written amendment to this Agreement executed by both parties.

1.2 “Contract Documents” consist of this Agreement, including Exhibit 1 (Statement of

Work, Compensation, Payment, and Renewal Terms); Exhibit 2 (Insurance

Requirements); Exhibit 3 (Request for Proposals). [INSERT ADDITIONAL EXHIBITS AS

NECESSARY, e.g., representative’s proposal, design documents, or other documents that need to be contractual.] The Contract Documents also include any Amendments, Project Consultant Agreements, and Project Contractor Agreements.

1.3 “Force Majeure Event” means acts of God, acts of civil emergency or military authorities, fires, floods, unusual and unanticipated adverse weather conditions, earthquakes, pandemics, strikes or labor disturbances not caused by the party benefited by the delay, civil commotion, or war.

1.4 “Personnel” means Representative’s Authorized Representative, professional employees or agents, and any of its subcontractors.

1.5 “Project Consultants” means architects, planners, designers, engineers, financial advisers, and others retained by Owner who shall furnish professional and other services involved in the Project, excluding Representative.

1.6 “Project Consultant Agreements” means contracts entered into by Owner with the

Project Consultants.

1.7 “Project Contractors” means the general contractors, subcontractors of any tier, vendors, suppliers, manufacturers, and others contracted by Owner to furnish labor, professional services, materials, or equipment to or for Owner in connection with the

Project.

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1.8 “Project Contractor Agreements” means contracts entered into by Owner with Project

Contractors.

1.9 “Project Team” consists of Owner, Representative, Project Consultants, and Project

Contractors.

ARTICLE II

SERVICES

2.1 Performance. Representative will perform the Services (a) in accordance with and subject to the terms and conditions of this Agreement; (b) in compliance with all federal, state, and local laws applicable to Representative’s performance of the Services, including but not limited to laws, rules, regulations, and policies concerning workers’ compensation, equal employment, and nondiscrimination requirements; (c) in accordance with the standard of skill, expertise, and care for construction consultants and managers of similar experience performing similar services for projects of similar scope and complexity to the Project in the Portland, Oregon, metropolitan area; and

(d) in coordination and cooperation with Owner.

2.2 Schedule. Owner and Representative will mutually agree upon a schedule within six months of the Effective Date of this Agreement. Owner and Representative will amend this Agreement to include the schedule as an exhibit.

2.3 Information Provided by Owner. Representative will review information provided by

Owner, and to the extent that Representative has actual knowledge of any actual or apparent deficiencies, defects, or timelines in such information, Representative will promptly notify Owner in writing.

2.4 Personnel.

(a) Representative’s Authorized Representative is identified in Section 8.1 of this Agreement and will perform or manage the performance of the Services to be provided by Representative.

(b) Representative’s Personnel must be reasonably satisfactory to Owner, and Owner may require the removal and replacement of any or all of them upon

10 days’ notice to Representative.

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(c) Representative’s subcontractors will be licensed or registered according to their respective professional disciplines. If any of the Services require licensure or registration, Representative’s Personnel will be properly licensed or registered to perform those Services.

(d) So long as they remain employed by Representative, Representative may not otherwise remove or replace any of its Key Personnel or cause them to leave the

Project for any reason, including without limitation to work on other projects or take extended vacations or sabbaticals (but excluding standard sick leave and vacations), without 30 days’ advance written notice to, and the prior consent of, Owner. Any replacement for Key Personnel must have qualifications and experience comparable to or better than the individual being replaced and must be reasonably acceptable to Owner

(e) Representative’s Key Personnel consist of the following individuals:

Name Title

2.5 Independent Contractor. By its signature on this Agreement, Representative certifies that the Services to be performed under this Agreement are those of an independent contractor as defined in ORS 670.600, and that Representative is solely responsible for the Services performed under this Agreement. Representative represents and warrants that Representative, its subcontractors, employees, and agents are not “officers, agents, or employees” of Owner within the meaning of the Oregon Tort Claims Act (ORS 30.260 through 30.300). Representative shall be responsible for all federal, state, and local taxes and any and all fees applicable to payments for Services under this Agreement.

2.6 Compliance With Policies. Representative agrees to comply with all Owner policies and standards applicable to the Project.

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2.7 Confidential Information.

(a) Restrictions on Use and Disclosure. Representative will not communicate or disclose at any time to any person or entity any information obtained or made available to Representative for purposes of the Services, or incidentally obtained or observed by it, that Owner has designated as confidential (“Confidential

Information”) except: (i) with prior written consent of Owner; (ii) information that was in the public domain before the Effective Date; (iii) information that becomes part of the public domain by publication or otherwise not due to any unauthorized act or omission of Representative; or (iv) when withholding of the information would violate the law or create the risk of significant harm to the public.

(b) Obligation to Protect Confidential Information. Representative will establish and maintain appropriate safeguards, procedures, and systems to avoid the unauthorized destruction, loss, alteration, access to, or disclosure of any of

Owner’s Confidential Information, in accordance with the standards of the applicable industry and as otherwise required by applicable law.

(c) FERPA. In addition to, and not withstanding anything to the contrary in subsections 2.7(a) and (b) above, as required by the Family Educational Rights and Privacy Act, 20 USC § 1232(g) (FERPA) and ORS 326.565, Representative shall not disclose any information or records regarding students or their families that

Representative may learn or obtain in the course and scope of its performance of this Agreement. The parties recognize that FERPA imposes strict penalties for improper disclosure or redisclosure of confidential student information, including but not limited to denial of access to personally identifiable information from education records, for at least five years (34 CFR § 99.33(e)).

Therefore, consistent with FERPA’s requirements, personally identifiable information obtained by Representative in the performance of this Agreement may not be redisclosed to third parties without the written consent of the student’s parent or guardian and must be used only for the purposes identified in this Agreement.

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(d) Survival. The confidentiality obligations under this Section 2.7 survive termination of this Agreement.

2.8 Subcontractors. Except as otherwise expressly allowed in the scope of the Services set forth in Exhibit 1, Representative will not subcontract the performance of any Services without Owner’s prior written consent. Notwithstanding the existence or terms of any subcontract, Representative will remain responsible to Owner for the full performance of the Services, including the Services that may be performed under a subcontract with a subcontractor.

2.9 Use of Name and Publicity. Representative will not use the name, insignia, or symbols of

Owner, or the name of any executive, staff member, volunteer, board member, student, or agent for any promotional purpose (including in connection with providing the

Services) without Owner’s prior written consent. Unless required by law or as contemplated in this Agreement, Representative will not make any press releases or public announcements, or speak with any media or press outlet regarding the Project or the Services without Owner’s prior written consent.

2.10 Construction Means and Methods; Cost Estimates. Representative will not have control over and will not be responsible for construction means, methods, and techniques, since these are solely the responsibility of the Project Contractors under the Project

Contractor Agreements. Evaluation of Project budgets, preliminary estimates of construction costs, and detailed estimates of contractor cost, if prepared by

Representative, represent Representative’s good-faith judgment based on its experience and expertise.

2.11 Scope of Representative’s Review. Representative will review the work of the Project

Consultants and Project Contractors for defects and deficiencies without assuming any responsibility for design or construction defects or deficiencies that Representative does not or should reasonably be expected to discover, recognizing that Representative is not acting as the architect or engineer of record. If Representative discovers any defects or inadequate construction or design, Representative will (a) notify Owner of these problems and deficiencies and (b) make appropriate recommendations to Owner in the form of a weekly report. If Representative discovers any defect or inadequate construction or design that poses an imminent threat to safety of persons or property,

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Representative will act, at Representative’s reasonable discretion, to prevent threatened damage, injury, or loss and immediately notify Owner.

2.12 Time Is of the Essence. Representative will perform the Services in accordance with the

Schedule and as expeditiously as is consistent with the professional skill and care described in Section 2.1 and the orderly progress of the Project. Time is of the essence under this Agreement.

2.13 Services Rendered on Owner’s Property.

(a) Identification. Personnel performing the Services on Owner’s property or for

Owner shall be in appropriate attire all times. In addition, all such persons shall carry photo identification and will present such identification to anyone upon request. If such identification cannot be produced by Representative, or is not acceptable to Owner, Owner may provide, at its sole discretion, such identification tags to Representative. Representative shall bear the entire cost of producing and assigning such identification.

(b) Smoking, Drugs, and Firearms. Smoking or other use of tobacco is prohibited on

Owner’s property. Owner maintains a drug-free environment except to the extent that drugs are medically prescribed and used consistently with those prescriptions. Representative and its Personnel may not work under the influence of or be impaired or affected by any unauthorized or illegal drugs, cannabis, or alcohol. Except as provided by Oregon statutes and Owner policy, weapons and firearms are prohibited on Owner’s property.

(c) No Unsupervised Contact With Students. “Unsupervised contact with students” means contact with students that provides the person opportunity and probability for personal communication or touch when not under direct supervision. Representative will ensure that Personnel will have no direct, unsupervised contact with students while on Owner’s property. Representative authorizes Owner to obtain information about Representative and

Representative’s history and to conduct a criminal background check, including fingerprinting, of any Personnel who will be present on Owner’s property.

Representative also agrees to cause Representative’s Personnel to authorize

Owner to conduct such background checks. Owner may deduct the cost of such

- 8 -fees from payment to Representative under this Agreement, unless

Representative elects to pay such fees directly. Representative shall not deploy any employee or agent to provide the Services under this Agreement if (a) the employee or agent would have direct, unsupervised contact with students as determined by Owner, and (b) the employee or agent has been convicted of a crime listed in ORS 342.143(3).

2.14 Ownership of Work. All work product created by Representative as part of

Representative’s performance of this Agreement, including background data, documentation, and staff work that is preliminary to final reports, shall be the exclusive property of Owner. If any such work product contains intellectual property of

Representative that is or could be protected by federal copyright, patent, or trademark laws, Representative hereby grants Owner a perpetual, royalty-free, fully paid-up, nonexclusive and irrevocable license to copy, reproduce, deliver, publish, perform, dispose of, use, reuse (in whole or in part), all such work product, and to authorize others to do so. Owner shall have no rights in any preexisting work product of

Representative provided to Owner by Representative in the performance of this

Agreement except to copy, use, and reuse any such work product for Owner use only. If this Agreement is terminated by either party or by default, Owner, in addition to any other rights provided by this Agreement, may require Representative to transfer and deliver such partially completed work product, reports, or other documentation that

Representative has specifically developed or specifically acquired for the performance of this Agreement.

2.15 Nondiscrimination (Required by ORS 279A.110). Representative shall not discriminate against a subcontractor when awarding subcontracts because the subcontractor is a disadvantaged business enterprise, a minority-owned or women-owned business, an emerging small businesses certified under ORS 200.055, or a business that is owned by a service-disabled veteran.

2.16 Tax Compliance Warranty (Required by ORS 279B.045). Representative represents and warrants that Representative has complied with the applicable tax laws of this state or a political subdivision of this state, including but not limited to ORS 305.620 and

ORS chapters 316, 317, and 318. Representative covenants that Representative will continue to comply with the tax laws of this state or a political subdivision of this state

- 9 -during the term of this Agreement. Failure by Representative to comply with the applicable tax laws of this state or a political subdivision of this state before the execution of this Agreement or during the term of this Agreement is a default for which

Owner may terminate this Agreement and seek damages and other relief available under the terms of this Agreement or under applicable law.

2.17 Payment of Laborers. As required by ORS 279B.220 and 279C.505, Representative shall:

(a) Make payment promptly, as due, to all persons supplying to Representative labor or material for the prosecution of the Services provided under this

Agreement;

(b) Pay all contributions or amounts owed to the Industrial Accident Fund by

Representative or subcontractors, if permitted, incurred in the performance of this Agreement;

(c) Not permit any lien or claim to be filed or prosecuted against Owner on account of any labor or material furnished; and

(d) Pay to the Department of Revenue all sums withheld from employees in accordance with ORS 316.167.

(i) If Representative fails, neglects, or refuses to make prompt payment of any claim for labor or services furnished to it by any person in connection with this Agreement as such claim becomes due, Owner may pay such claim to the person furnishing the labor or services and charge the amount of the payment against funds owed or to become owed to

Representative by reason of this Agreement.

(ii) The payment of a claim in this manner shall not relieve Representative or

Representative’s surety, if any, from obligation with respect to any unpaid claims.

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2.18 Hours of Labor, Pay Equity, Salary Discussion (Required by ORS 279B.020, 279B.235, and

279C.540(6)).

(a) Employees shall be paid at least time and a half for all overtime worked in excess of 40 hours in any one week and for work performed on Saturdays, Sundays, New Year’s Day (January 1), Memorial Day (last Monday in May), Independence

Day (July 4), Thanksgiving Day (fourth Thursday in November), and Christmas

Day (December 25).

(b) These requirements do not apply to individuals who are excluded under ORS

653.010 to 653.261 or under 29 U.S.C. 201 to 209 from receiving overtime.

(c) Representative shall give notice in writing to its employees who perform work under this Agreement, either at the time of hire or before commencement of work on this Agreement, or by posting a notice in a location frequented by employees, of the number of hours per day and days per week that the employees may be required to work.

(d) Representative shall comply with ORS 652.220 (Prohibition of discriminatory wage rates based on sex; employer not to discriminate against employee who is a complainant). Compliance is a material element of this Agreement. Failure to is a breach that entitles Owner to terminate this Agreement for cause.

(e) Representative may not prohibit any of Representative’s employees from discussing the employee’s rate of wage, salary, benefits or other compensation with another employee or another person, and may not retaliate against an employee who does so.

2.19 Limitation on Claims (Required by ORS 279C.545).

(a) For Representative’s employees subject to Oregon employment laws and as required by ORS 279C.545, any worker employed by Representative shall be foreclosed from the right to collect for any overtime provided in ORS 279C.540 unless a claim for payment is filed with Representative within 90 days from the completion of this Agreement, providing Representative has:

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(i) Caused a circular clearly printed in boldfaced 12-point type and containing a copy of this Section to be posted in a prominent place alongside the door of the timekeeper’s office or in a similar place that is readily available and freely visible to workers employed on the work; and

(ii) Maintained such circular continuously posted from the inception to the completion of this Agreement on which workers are or have been employed

2.20 Payment for Medical Care and Workers’ Compensation (Required by ORS 279B.230 and

279C.530).

(a) Representative shall promptly, as due, make payment to any person, copartnership, association, or corporation furnishing medical, surgical, and hospital care services, or other needed care and attention incident to sickness or injury to the employees of Representative, of all sums that Representative agrees to pay for the services and all moneys and sums that Representative collected or deducted from the wages of employees under any law, contract, or agreement for the purpose of providing or paying for the services.

(b) All subject employers working under this Agreement are either employers that will comply with ORS 656.017 (addressing workers’ compensation) or employers that are exempt under ORS 656.126. If Representative claims to be exempt, Representative will complete the exemption certificate in a form acceptable to

Owner.

2.21 Sexual Abuse and Misconduct Reporting and Training (ORS 339.370 to 339.400). All Representative’s staff must be trained annually on sexual abuse and misconduct information and reporting as required by ORS 339.400(2).

ARTICLE III

OWNER’S OBLIGATIONS

3.1 Owner’s Authorized Representative. Owner’s Authorized Representative regarding the

Services is designated in Section 8.1 of this Agreement.

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3.2 Information. Owner will make the following information available to Representative upon request:

(a) Additional requirements for performance of the Services.

(b) Project information, including previous reports, plans, and other data relative to the design and construction of the Project.

(c) Project site information within Owner’s possession and control.

3.3 Access. Owner will provide Representative with access to the Project site as required for

Representative’s performance of the Services. Representative will provide its Personnel with cell phones and all other necessary computer hardware at its expense.

Representative will provide standard office software at its own expense.

3.4 Notice of Defects. Owner will notify Representative whenever Owner observes or otherwise becomes aware of any defect in the Project or deficiency in the Services.

3.5 Response to Requests. Owner will respond to Representative’s requests for information, change orders, progress reports, and applications/certifications for payment.

ARTICLE IV

COMPENSATION

4.1 Cost of the Services. Representative will be compensated for the cost of performing the

Services, subject to subsection 4.1(c). The Cost of the Services will include only the time expended on the Project at the hourly rates identified in subsection 4.1(a), which may be subject to a maximum increase of X% per year (the “Hourly Rates”) and reimbursable expenses as defined in Section 4.1(b) (the “Reimbursable Expenses”) (collectively, the “Cost of the Services”):

(a) Hourly Rates. Set forth in Exhibit 1.

(b) Reimbursable Expenses. Set forth in Exhibit 1.

(c) Not-to-Exceed Amount.

(i) The Cost of the Services will not exceed $_____________ (the “Not-to-

Exceed Amount”).

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(ii) Once Owner and Representative agree upon the schedule described in

Section 2.2, Representative provide an itemization of the Not-to-Exceed Amount that includes Representative’s estimated annual allocation of the Not-To-Exceed

Amount during the Initial Term of this Agreement.

(iii) The Not-to-Exceed Amount may be adjusted as mutually agreed in writing by Owner and Representative and documented as an Amendment to this

Agreement. Owner will have no obligation to make any payments to

Representative in excess of the Not-to-Exceed Amount.

4.2 Invoices and Payment.

(a) Invoice Requirements. By the seventh day of each calendar month (or, if the seventh day falls on a weekend or holiday, the next business day) during which

Representative performs the Services, Representative will submit an invoice to

Owner for the compensation for the Services performed by Representative during the preceding month. Each progress payment will be based on the Cost of the Services incurred for that time period. Each invoice will be in form and content reasonably acceptable to Owner and will include (i) unconditional releases and waivers of lien and bond claims from Representative and any of its subcontractors and suppliers, covering everything for which Representative has been paid by Owner, and binding conditional waivers for all Services for which payment is requested in the invoice, and (ii) if applicable, an itemization of any

Reimbursable Expenses and Hourly Rates. Representative will furnish such receipts, documents, and information as Owner may reasonably request to verify any expenses invoiced under this Agreement. The compensation and other amounts payable to Representative under this Agreement include all applicable sales, use, excise, and other taxes.

(b) Payment. All amounts payable to Representative under this Agreement are due within 30 days of Owner’s receipt of the invoice, provided that Representative has met the requirements set forth in subsection 4.2(a). No payment will be owing to Representative, however, if and to the extent that Representative has not fully paid its subcontractors and suppliers for all amounts owing to them, including without limitation from all of Owner’s prior payments to

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Representative for any services or materials provided by Representative’s subcontractors and suppliers. If Owner contests an invoice, Owner shall promptly advise Representative of the basis for doing so, and may withhold only that portion so contested and will pay any undisputed portion.

4.3 Access to Records. Representative agrees that Owner and its authorized representatives shall have access to the books, documents, papers, and records of Representative that are pertinent to this Agreement for the purpose of performing financial or performance audits or for review and copying. Representative shall maintain all fiscal records directly relating to this Agreement in accordance with generally accepted accounting principles.

In addition, Representative shall maintain any other records pertinent to this Agreement in such a manner as to clearly document Representative’s performance. Representative shall retain and keep accessible all such fiscal records, books, documents, papers, plans, and writings for a minimum of seven 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 later.

ARTICLE V

TERM AND TERMINATION

5.1 Commencement and Expiration.

(a) Initial Term. This Agreement runs from the Effective Date until the Project reaches final completion (the “Initial Term”).

(b) Extended Term. Upon the expiration of the Initial Term, the parties may mutually agree in writing to extend the term of this Agreement (the “Extended Term”)

(collectively, the Initial Term and the Extended Term are referred to as the “Term”). The Extended Term will expire upon the earlier of

(i) Representative’s completion of the Services, (ii) 90 days after the Project reaches final completion, or (iii) any length of time as the parties may agree, unless terminated earlier in accordance with this Agreement or unless otherwise agreed to in writing by the parties.

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5.2 Termination for Cause. A party shall be in default under this Agreement if the party

(a) fails to make a payment due under this Agreement and such failure is not cured within 20 days following receipt of notice of the default from the nondefaulting party; or

(b) materially fails to perform any of its nonmonetary obligations under this Agreement and such failure is not cured within 30 days following its receipt of notice of the failure from the nondefaulting party. However, if a nonmonetary failure cannot be reasonably cured within such 30-day period, the defaulting party shall have such additional time as is reasonably necessary to cure the default, so long as that party has commenced the cure within the initial 30-day period and diligently prosecutes the cure to completion within 60 days thereafter. Following a default that is not cured prior to the expiration of the applicable cure period, the nondefaulting party, at its option, may elect to terminate this Agreement by sending a written termination notice to the defaulting party indicating its election to terminate this Agreement and establishing the effective date of the termination, which may be immediately. An election by the nondefaulting party to terminate this Agreement shall be in addition to and not in lieu of any other remedies available to the nondefaulting party at law or in equity, but subject to the terms of this

Agreement. Upon any termination by Owner under this Section 5.2, Representative will be entitled to equitable compensation (fees and expenses) for the Services satisfactorily performed prior to the date of termination, less a reasonable reduction for costs incurred by Owner as a result of Representative’s default. Any such payment will be due and payable within 45 days following the termination of this Agreement.

5.3 Termination Without Cause.

(a) Owner may terminate this Agreement at any time, without cause, by giving

Representative not less than 14 days’ prior written notice of its election to terminate this Agreement.

(b) Funding for the Project is contingent on the passage of a bond measure that

Owner will refer to the November 2026 ballot (“the Bond Measure”). If the Bond

Measure does not pass, Owner may terminate this Agreement effective upon written notice to the Representative.

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(c) Upon any termination by Owner under this Section 5.3, Representative will be entitled to equitable compensation (fees and expenses) for the Services satisfactorily performed prior to the date of termination.

5.4 Effect of Termination. Upon any termination of this Agreement, unless otherwise agreed to by the parties, Representative will discontinue the provision of any Services on the date the termination is effective.

5.5 Document Return. Upon any termination of this Agreement, Representative agrees to promptly return to Owner all material and documents provided to Representative by

Owner (including without limitation the items referenced in Section 3.2).

5.6 Suspension. If Owner suspends work on the Project under a Project Consultant

Agreement or Project Contractor Agreement, Owner may suspend this Agreement for a like period of time.

ARTICLE VI

INDEMNIFICATION

6.1 Indemnification.

(a) Claims for Other than Professional Liability. Representative will indemnify, defend, and hold harmless Owner and its agents, officers, directors, volunteers, employees, committee members, and any affiliated or related entities for, from, and against any and all claims, damages, losses, demands, liabilities, causes of action, costs, and expenses (including reasonable attorney fees, expert fees, and litigation or arbitration costs) to the extent that any such claim, damage, loss, demand, liability, cause of action, cost, or expense arises from the acts, errors, or omissions of Representative or its Personnel, agents, officers, or employees.

(b) Claims for Professional Liability. Representative will indemnify and hold harmless Owner and its agents, officers, directors, volunteers, employees, committee members, and any affiliated or related entities for, from, and against any and all claims, damages, losses, demands, liabilities, causes of action, costs, and expenses (including reasonable attorney fees, expert fees, and litigation or arbitration costs) to the extent that any such claim, damage, loss, demand,

- 17 -liability, cause of action, cost, or expense arises from the acts, errors, or omissions of Representative or its Personnel, agents, officers, or employees.

6.2 Indemnification Limitations.

(a) Representative is not required to indemnify Owner or its agents, officers, directors, volunteers, employees, committee members, or any affiliated or related entities for, from, or against liability for damage arising out of death or bodily injury to persons or damage to property to the extent caused in whole or in part by the negligence or willful misconduct of Owner or its agents, officers, employees, or any affiliated or related entities, but Representative is required to indemnify Owner and its agents, officers, employees, and any affiliated or related entities for, from, and against liability for damage arising out of death or bodily injury to persons or damage to property to the extent that the death or bodily injury to persons or damage to property arises out of the fault of

Representative, or the fault of Representative’s Personnel, agents, officers, or employees.

(b) Representative’s indemnity obligations shall not be construed to negate, abridge, or reduce other rights or obligations of indemnity that would otherwise exist as to a party or person described in this Section.

(c) In claims against any person or entity indemnified under this Section 6.2 by an employee of Representative, Representative itself, or anyone directly or indirectly employed by them or anyone for whose acts they may be liable, the indemnification obligation under this Section 6.2 shall not be limited by a limitation on amount or type of damages, compensation, or benefits payable by or for Representative under workers’ compensation acts, disability benefit acts, or other employee benefit acts.

(d) Notwithstanding anything to the contrary in this Section 6.2, Representative will not have a duty to defend Owner and its agents, officers, directors, volunteers, employees, committee members, and any affiliated or related entities, from, for, or against a claim for professional negligence relating to the professional services provided under this Agreement, except to the extent that Representative’s liability or fault is determined by adjudication or alternative dispute resolution or

- 18 -otherwise resolved by settlement agreement, and not to exceed the proportionate fault of Representative.

6.3 Survival. The indemnity obligations under this Article VI survive termination of this

Agreement.

ARTICLE VII

INSURANCE

Representative shall provide and maintain insurance coverage as provided in Exhibit 2.

ARTICLE VIII

GENERAL PROVISIONS

8.1 Notice. All notices required or given under this Agreement will be deemed properly given when delivered by (a) personal delivery, (b) courier, (c) first-class United States mail, postage prepaid, (d) facsimile, or (e) electronic mail. The addresses to be used for notices to the parties:

Owner’s Authorized Representative:

[Insert contact information]

Representative’s Authorized Representative:

[Insert contact information]

8.2 Dispute Resolution.

(a) Arbitration. Every claim, dispute, or other matter in question arising out of or related to this Agreement is subject to arbitration. Unless the parties mutually agree otherwise, arbitration is to be administered by and in accordance with the rules of the Arbitration Service of Portland, Inc. The arbitrator will be appointed in accordance with the rules of Arbitration Service of Portland, Inc. A demand for arbitration must be made in writing, delivered to the other party to this

Agreement, and filed with the person or entity administering the arbitration.

Unless the parties agree otherwise in writing, the place of arbitration will be

Washington County, Oregon. The award rendered by the arbitrator will be final,

- 19 -binding, and nonappealable, and judgment may be entered on the award in any court having jurisdiction.

(b) Mediation. The parties may endeavor to resolve disputes by mediation at any time as they may agree, provided, however, that resolution of disputes by mediation is not required prior to initiating resolution of disputes by arbitration.

(c) Consolidation or Joinder. Either party, at its sole discretion, may consolidate an arbitration conducted under this Agreement with any other arbitration to which it is a party provided that (i) the arbitration agreement governing the other arbitration permits consolidation, (ii) the arbitrations to be consolidated involve substantially common questions of law or fact, and (iii) the arbitrations employ materially similar procedural rules and methods for selecting arbitrator(s). Either party, at its sole discretion, may include in an arbitration proceeding by joinder persons or entities substantially involved in a common question of law or fact whose presence is required if complete relief is to be accorded. Owner and

Representative grant to any person or entity made a party to an arbitration conducted under this Section 8.2, whether by joinder or consolidation, the same rights of joinder and consolidation that Owner and Representative enjoy under this Agreement.

8.3 Force Majeure Event. Neither party will be liable for a failure to perform under this

Agreement caused by a Force Majeure Event, provided that (a) the party failing to perform must immediately give notice to the other party of the extent and nature of the problem, (b) the party failing to perform must limit delay in performance to that required by the event, (c) the party failing to perform must take all reasonable steps to minimize delays, and (d) the failure to perform is beyond the control and without the fault or negligence of the nonperforming party.

8.4 Nondiscrimination Clause. Representative must comply with all applicable requirements of federal and state civil rights law and rehabilitation statutes and shall not discriminate based on race, religion, color, sex, marital status, familial status, national origin, age, mental or physical disability, sexual orientation, source of income, or political affiliation in programs, activities, services, benefits, or employment.

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8.5 Waiver. Any failure by either party to insist upon the performance of any provision of this Agreement will not constitute a waiver of any rights or a waiver of any right to future performance of that provision. For any waiver or modification of any provision of this Agreement to be effective, it must be set forth in a writing executed by both parties’ authorized agents.

8.6 Successors and Assigns. Each of the parties to this Agreement binds its successors and assigns with respect to all covenants of this Agreement. Neither party may assign its rights or obligations under this Agreement to any other person or entity without written consent of the other party, and consent is not to be unreasonably withheld.

8.7 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the state of Oregon, without reference to conflicts-of-law principles.

8.8 Entire Agreement. Except as otherwise provided in this Agreement, this Agreement represents the entire, integrated agreement between Owner and Representative with respect to the Services, and supersedes all prior negotiations, representations, or agreements, either written or oral. This Agreement may be amended only by an Amendment signed by both parties.

8.9 Severability. If any section or portion of this Agreement is held to be wholly or partially contrary to law or otherwise invalid, unenforceable, or inapplicable for any reason, that section or portion will continue in effect only to the extent consistent with the law. All remaining sections and portions of this Agreement will remain fully valid, in force, and applicable.

8.10 Counterparts and Electronic Signatures. This Agreement may be executed (a) in counterparts with the same effect as if both parties had signed the same counterpart, and (b) by electronic signature delivered via facsimile, PDF, or other electronic means.

Counterparts will be construed together and will constitute one agreement. A single counterpart may be introduced as evidence of this Agreement.

8.11 Attorney Fees. If a suit or action is filed to enforce any of the terms of this Agreement, the prevailing party shall be entitled to recover from the other party, in addition to costs and disbursements provided by statute, any sum which an arbitrator or a court, including any appellate court, may adjudge reasonable as attorney fees. If the prevailing

- 21 -party is represented by “in-house” counsel, the prevailing party shall nevertheless be entitled to recover reasonable attorney fees based upon the reasonable time incurred and the attorney fee rates and charges reasonably and generally accepted in the metropolitan Portland, Oregon, area for the type of legal services performed.

8.12 Rule of Construction. The rule of construction that a contract is construed against the drafter shall not apply to any dispute over the interpretation of application of the contract.

[Signature page follows.]

- 22 -

OWNER

Hillsboro School District

Signature

Printed Name

Title

REPRESENTATIVE

[Name]

Signature

Printed Name

Title

1-1

EXHIBIT 1

Statement of Work, Compensation, Payment, and Renewal Terms

1. Representative shall perform the following Services: DESCRIBE OR REFERENCE EXHIBIT, SUCH AS REPRESENTATIVE’S PROPOSAL OR THE RFP.

2. The maximum total payment under this Agreement, including expenses: DESCRIBE OR

REFERENCE EXHIBIT, SUCH AS REPRESENTATIVE’S PROPOSAL OR THE RFP.

3. Owner shall pay Representative on the following basis: DESCRIBE OR REFERENCE

EXHIBIT, SUCH AS REPRESENTATIVE’S PROPOSAL OR THE RFP.

4. Owner will pay expenses on the following terms and conditions: DESCRIBE OR

REFERENCE EXHIBIT, SUCH AS REPRESENTATIVE’S PROPOSAL OR THE RFP.

**Owner shall have the right to withhold from payments due Representative such sums as are necessary in Owner’s sole opinion to protect Owner from any loss, damage, or claim that may result from Representative’s failure to perform in accordance with the terms of this Agreement or failure to make proper payment to suppliers or subcontractors.

2-1

EXHIBIT 2

Insurance Requirements

Representative shall at all times maintain in force, at Representative’s expense, each insurance noted below:

Workers’ Compensation insurance in compliance with ORS 656.017, which requires subject employers to provide workers’ compensation coverage in accordance with ORS chapter 656 for all subject workers. Representative and all subcontractors of Representative with one or more employees must have this insurance unless exempt under ORS 656.027. This shall include Employer’s Liability Insurance with coverage limits of not less than $1,000,000 each accident.

Waiver of subrogation in favor of Owner will be provided.

THIS COVERAGE IS REQUIRED. Attach Certificate of Insurance. If Representative does not have coverage and claims to be exempt, attach certification of exemption in lieu of Certificate.

Professional Liability/E&O insurance with a combined single limit of not less than ☐ $1,000,000, ☐ $2,000,000 each claim, incident, or occurrence, with an annual aggregate limit of ☐ $1,000,000, ☐ $2,000,000. This is to cover damages caused by error, omission, or negligent acts related to professional services provided under this Agreement. This coverage must be provided and remain in force for two years after the completion of the Agreement.

Commercial General Liability insurance, on an occurrence basis, with a limit of not less than ☐ $1,000,000, ☐ $2,000,000 each occurrence for Bodily Injury and Property Damage, with an annual aggregate limit of ☐ $500,000, ☐ $1,000,000, ☐ $2,000,000. This insurance must include contractual liability coverage.

Commercial Automobile Liability insurance with a combined single limit, or the equivalent of not less than ☐ $1,000,000, ☐ $2,000,000 each occurrence for Bodily Injury and Property

Damage, including coverage for owned, hired, or nonowned vehicles.

2-2

Additional Requirements. Coverage must be provided by an insurance company admitted to do business in Oregon or rated A- or better by A.M. Best’s Insurance Rating. Representative shall pay all deductibles and retentions. A cross-liability clause or separation-of-insureds condition must be included in all commercial general liability policies required by this Agreement.

Representative’s coverage will be primary in the event of loss.

Certificate(s) of Insurance Required. Representative shall furnish a current Certificate(s) of Insurance to Owner prior to execution of the Agreement. The Certificate(s) shall provide that there shall be no cancellation, termination, material change, or reduction of limits of the insurance coverage without 30 days’ written notice from Representative’s insurer to Owner.

The Certificate(s) shall also state the deductible or retention level. For commercial general liability and commercial automobile liability policies, the Certificate shall also provide that

Owner and its agents, officers, and employees are Additional Insureds with respect to

Representative’s Services to be provided under this Agreement. An additional-insured endorsement shall be attached to the Certificate. No work shall commence until Owner receives the Certificate and additional-insured endorsement. If requested, complete copies of insurance policies shall be provided to Owner.

3-1

EXHIBIT 3

Request for Proposals