Addendum #2 S-C26014-00008953 On-Call Real Estate Research Consulting and Related Services.pdf

ADDENDUM NO. 2 January 31, 2024

ITB # S-C26014-00008953

On-Call Real Estate Research Consulting and Related Services

This addendum modifies the solicitation document(s) only to the extent indicated herein. All other areas not specifically mentioned or affected by this addendum shall remain in full force. This addendum shall be added as a part of the original solicitation document and shall become part of the work required.

Description of Change(s) and Clarifications:

1. Item #1: Attachment A: Sample Contract Revisions

a. The Sample Contract is revised:

1. Item 3. Project Partnership Agreement (PPA)

2. Item 18. United States Army Corps of Engineers (USACE) Requirements

2. Item #2 Question received via email:

a. Question: Requested language change: May the DISTRICT consider adding the following language to include for the finding of comparative fault under Section 27 – Indemnity and Hold Harmless:

Suggested language: “If it is finally adjudicated that liability is caused by the comparative active negligence or willful misconduct of the DISTRICTS, then Contractor’s indemnification and defense obligations shall not exceed Contractor’s proportionate percentage of fault.”

b. Answer: Not at this time. Please note that any contract language changes need to be requested within the cover letter of the proposal and will be considered at the time of evalulations.

BID DUE DATE AND TIME: Bid due date and time remains unchanged.

RECEIPT OF THIS ADDENDUM BY THE BIDDER IS TO BE ACKNOWLEDGED BY ENTERING

THE ADDENDUM NUMBER IN THE APPROPRIATE AREA ON THE PROPOSAL FORM.

Addendum prepared by:

Trisha Schultz, Procurement and Contract Analyst Multnomah County Drainage District No. 1

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Attachment A: Sample Contract -1-

ATTACHMENT A: FORM OF PROPOSED CONTRACT

MULTI-DISTRICT PERSONAL SERVICES PRICE AGREEMENT

between

MULTNOMAH COUNTY DRAINAGE DISTRICT NO. 1

PENINSULA DRAINAGE DISTRICT NO. 1

PENINSULA DRAINAGE DISTRICT NO. 2

SANDY DRAINAGE IMPROVEMENT COMPANY

COLUMBIA CORRIDOR DRAINAGE DISTRICTS JOINT CONTRACTING

AUTHORITY

THE URBAN FLOOD SAFETY AND WATER QUALITY DISTRICT

and

CONTRACTOR NAME

Agreements:

MC-####-###-PSC

P1-####-###-PSC

P2-####-###-PSC

SD-####-###-PSC

JCA-####-###-PSC

UFSWQD-####-###-PSC

This Personal Services Price Agreement (this “Agreement”) is made by and between the

MULTNOMAH COUNTY DRAINAGE DISTRICT NO. 1 ("MCDD"), PENINSULA

DRAINAGE DISTRICT NO. 1 ("PEN 1"), PENINSULA DRAINAGE DISTRICT

NO. 2 ("PEN 2"), SANDY DRAINAGE IMPROVEMENT COMPANY ("SDIC"),

MUNICIPAL CORPORATIONS OF THE STATE OF OREGON, COLUMBIA

CORRIDOR DRAINAGE DISTRICTS JOINT CONTRACTING AUTHORITY ("JCA"),

AN INTERGOVERNMENTAL ENTITY CREATED UNDER ORS 190, THE URBAN

FLOOD SAFETY AND WATER QUALITY DISTRICT (“UFSWQD”) (EACH, A

"DISTRICT," AND COLLECTIVELY, THE "DISTRICTS"), and [FULL LEGAL NAME OF CONTRACTOR] ("Contractor").

The parties agree as follows:

TERMS AND CONDITIONS

1. Initial Information

a. Effective Date and Termination. The effective date of this Agreement is [insert date] or the date on which each party has signed this Agreement, whichever is later (the “Effective Date”).

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Unless earlier terminated as provided below, the termination date is [insert date] (“Termination Date”).

b. Agreement Renewal: This Agreement may be renewed upon mutual agreement of Contractor and the DISTRICTS in writing up to five years from the initial execution of this Agreement.

c. Contractor’s Contract to Provide Services. Contractor agrees to provide a DISTRICT with the Services described in Exhibit 1 (Statement of the Work) upon issuance of a task order from that DISTRICT identifying a specific project or request for services (a “Project”), scope of work, schedule, and price (a “Task Order”). No DISTRICT, however, has any obligation to issue any Task Orders to Contractor under this Agreement. All Task Orders, contracts, purchase orders, accepted proposals, and requests for Services issued by a DISTRICT to Contractor under this Agreement are subject to and governed by this Agreement, and this Agreement is incorporated into each Task Order. Although all Services are subject to this Agreement, issuance of a Task Order for any Services is a prerequisite for any payment to the Contractor for Services.

d. Payment for Services. The DISTRICT agrees to pay Contractor in accordance with Exhibit 1.

e. Compensation Cap. The maximum amount of compensation to be paid to Contractor under this Agreement is as follows (the amount shown below for each DISTRICT is that DISTRICT’s “Compensation Cap”):

MCDD: $[INSERT AMOUNT]

PEN 1: $[INSERT AMOUNT]

PEN 2: $[INSERT AMOUNT]

SDIC: $[INSERT AMOUNT]

JCA: $[INSERT AMOUNT]

UFSWQD: $[INSERT AMOUNT]

Each Task Order will include a not-to-exceed budget for a Project, including reimbursable expenses (the “NTE Project Budget”). Each NTE Project Budget under a DISTRICT’s Task Order is subject to that DISTRICT’s Compensation Cap, and an NTE Project Budget, when added to the total sum of the NTE Project Budgets set forth under all previously issued Task Orders by that DISTRICT, may not exceed that DISTRICT’s Compensation Cap.

f. Exhibits. This Agreement includes the following Exhibits:

Exhibit 1: Statement of Work, Compensation, and Invoicing Requirements Exhibit 2: Insurance Requirements

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Exhibit 3: Certification Statement for Corporation or Independent Contractor Exhibit 4: Workers’ Compensation Exemption Form.

Exhibit 5: Contractor’s Rate Schedule Exhibit 6: [Add proposal, or other relevant attachments]

g. Contract Documents. A Contract is created by a DISTRICT’s issuance, and the Contractor’s acceptance of, a Task Order. A Contract consists of the Contract Documents, which are as follows:

1. This Agreement;

2. A Task Order;

3. A proposal from the Contractor, as applicable, accepted in writing by DISTRICT only to the extent that it sets out the scope of any Services and an agreed-upon NTE Project Budget. No terms or conditions of a proposal from Contractor (including but not limited to any proposal that may be included as an exhibit or attachment to this Agreement) are incorporated into a Contract or into this Agreement to the extent that they address matters that are the subject of this Agreement;

4. Drawings, specifications, and addenda issued before the execution of a Task Order;

5. Other documents incorporated by the terms of the Contract Documents; and

6. Amendments issued after execution of the Contract.

h. Order of Precedence. The terms of any document that forms a Contract are subject to the following order of precedence:

1. Terms of an Amendment issued after the execution of the Contract, provided that

(1) the Amendment explicitly states that those terms amend specific terms of this Agreement or (2) the Amendment explicitly states that those terms (a) “have been negotiated between the parties and take precedence over any different or conflicting terms in this Agreement” and (b) “apply solely to the Contract formed by execution of this Task Order and do not extend to any Contracts beyond this Task Order”;

2. Terms within a Task Order if the Task Order explicitly states that those terms

(1) “have been negotiated between the parties and take precedence over any different or conflicting terms in this Agreement” and (2) “apply solely to the Contract formed by execution of this Task Order and do not extend to any Contracts beyond this Task Order”;

3. This Agreement (excluding its exhibits);

4. Amendments issued after the execution of the Contract, if subsection (1) of this Section 1(h) does not apply;

5. Task Orders, if subsection (2) of this Section 1(h) does not apply;

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6. Exhibits to this Agreement;

7. Contractor’s proposal as referenced in Section 1(g)(3), if applicable; and

8. Other documents incorporated by the terms of the Contract Documents.

A conflict in the Contract Documents shall be resolved in the priority listed above.

2. Time is of the Essence. Time is of the essence in the performance of this Agreement and each Contract. Upon execution of a Task Order, Contractor shall begin providing Services and shall complete its performance in accordance with the Contract.

3. Contract Administration. Through prior intergovernmental agreements signed by the Boards of Supervisors of PEN 1, PEN 2, and MCDD, and the Board of Directors of JCA, the UFSWQD, and SDIC, MCDD is designated to administer this Agreement, including any Contracts, on behalf of the DISTRICTS. In the event that specified MCDD personnel are no longer able to administer this Agreement, a Contract, or both, the Executive Director of MCDD shall designate new MCDD staff to administer the Agreement. DISTRICTS and Contractor will be notified in writing if such change occurs. Contractor acknowledges that the DISTRICTS will enter into a Project Partnership Agreement (“PPA”) with the Department of the Army (the “Government”).

4. Subcontracts and Assignment. Contractor shall not subcontract any of the Services required under a Contract, or assign or transfer any of its interest in a Contract, without the prior written consent of all DISTRICTS that are parties to the Contract, which may be withheld without cause.

Additionally, Contractor shall not assign or transfer any of its interest in this Agreement, without the prior written consent of the DISTRICTS, which may be withheld without cause. In addition to any other provisions the DISTRICTS may require, Contractor shall require of any permitted subcontract under this Agreement or Contract, that the subcontractor be bound by all the same terms and conditions of this Agreement or the Contract. Such subcontracts are solely between the Contractor and the subcontractor and shall not have any binding effect on any DISTRICT.

5. Other Contractors. The DISTRICT may undertake or award other contracts for additional or related work, and the Contractor shall fully cooperate with such other contractors and with any DISTRICT employees concerned with such additional or related work, and shall coordinate its performance under this Agreement and any Contract with such additional or related work. The Contractor shall not commit or permit any act that will interfere with the performance of work by any other contractor or by DISTRICT employees.

6. Independent Contractor Status. Contractor shall certify status as an independent contractor in accordance with Exhibit 3.

7. No Third-Party Beneficiaries. The DISTRICTS and Contractor are the only parties to this Agreement and are the only parties entitled to enforce its terms. Nothing in this Agreement gives or provides any benefit or right, whether directly, indirectly, or otherwise, to third persons unless such third persons are individually identified by name in this Agreement and expressly described as intended beneficiaries of this Agreement.

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8. Successors in Interest. The provisions of this Agreement shall be binding upon and inure to the benefit of the parties and their successors and approved assigns, if any. District may assign or transfer any of its interest in this contract at any time, including but not limited to upon dissolution as set forth in ORS 550.360.

9. Nonperformance. In the event of nonperformance under this Agreement, a Contract, or both, the DISTRICT, after seven days’ written notice, shall have the right to obtain from other sources such products, services, or both as may be required to accomplish the Services not performed, and it is agreed that the difference in cost, if any, for said work or products shall be borne by the Contractor. For purposes of this section, nonperformance shall be defined as failure to appear and perform the Services as specified and scheduled.

10. Early Termination. This Agreement, a Contract, or both may be terminated as follows unless otherwise specified herein:

a. By mutual written agreement, the parties to an individual Contract may terminate that Contract at any time. The DISTRICTS and Contractor, by mutual written agreement, may terminate this Agreement at any time.

b. The DISTRICTS, in their sole discretion, may terminate this Agreement for any reason on 30 days’ written notice to Contractor. A DISTRICT, in its sole discretion, may terminate an individual Contract to which it and Contractor are the only parties on 30 days’ written notice to Contractor. If more than one DISTRICT is a party to an individual Contract, the DISTRICTS that are a party to that Contract, in their sole discretion, may terminate the Contract on 30 days’ written notice to Contractor.

c. A party to an individual Contract may terminate that Contract in the event of a material breach by the other. Additionally, the DISTRICTS may terminate this Agreement in the event of a material breach by Contractor. To be effective, the party (or parties) seeking termination must give to the other party written notice of the breach and its intent to terminate. If the breaching party fails to cure the breach within 15 days of the date of the notice, the non-breaching party (or parties) may terminate the Contract (or the Agreement, as applicable) at any time thereafter by giving a written notice of termination.

d. Notwithstanding Section 10(c), the DISTRICTS may terminate this Agreement, or a DISTRICT may terminate an individual Contract to which it is a party, immediately by written notice to Contractor upon denial, suspension, revocation or non-renewal of any license, permit, or certificate that Contractor must hold to provide services under this Agreement.

e. Notwithstanding anything to the contrary in this Section 10, the DISTRICTS may terminate or suspend this Agreement immediately upon written notice to the Contractor if the Government (as defined in Section 18) terminates or suspends the PPA (as defined in Section 18), or any portion of the PPA, that the DISTRICTS determine, in their sole discretion, is relevant to Contractor’s provision of Services under this Agreement.

f. Notwithstanding anything to the contrary in this Section 10, a DISTRICT may terminate or suspend an individual Contract to which it is a party immediately upon written notice to the Contractor if the Government terminates or suspends the PPA, or any portion of the PPA, that

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-6-the DISTRICT determines, in its sole discretion, is relevant to Contractor’s provision of Services under the Contract.

11. Payment of Invoices

a. Method of Payment. Contractor shall bill DISTRICT monthly as Services are performed under a Contract in accordance with Exhibit 1. Payment shall be made as provided in Exhibit 1.

b. Payment on Early Termination. Upon termination pursuant to Section 10, payment shall be made as follows:

1. If this Agreement, an individual Contract, or both are terminated under Sections 10(a) or 10(b) for the convenience, or under 10(e) or 10(f), Contractor may invoice DISTRICT for Services that Contractor has performed for DISTRICT under a terminated, individual Contract, and DISTRICT shall pay all undisputed invoice(s) for Services performed until DISTRICT’s notice of termination. The DISTRICT shall not be liable for direct, indirect, or consequential damages. Termination shall not result in a waiver of any other claim the DISTRICT may have against Contractor.

2. If an individual Contract is terminated under Section 10(c) by the Contractor due to a breach by the DISTRICT, then the DISTRICT shall pay the Contractor for Services performed prior to the termination date if such Services were performed in accordance with the Contract.

3. If an individual Contract is terminated under Sections 10(c) or 10(d) by the DISTRICT due to a breach by the Contractor, then the DISTRICT shall pay the Contractor for Services performed under the Contract prior to the termination date provided such Services were performed in accordance with the Contract less any setoff to which the DISTRICT is entitled.

c. Escalation. Contractor may request an escalation of the compensation rates provided for herein to reflect actual increases in Contractor’s cost to perform the Services. DISTRICTS may audit Contractor’s records to confirm the validity of any requested escalation. Adjustments will not become effective until an amendment is executed by both parties reflecting the change.

12. Nondiscrimination (Required by ORS 279A.110). Contractor may not discriminate against a disadvantaged business enterprise, a minority-owned or women-owned business, an emerging small business certified under ORS 200.055, or a business that is owned by a service-disabled veteran. Additionally, Contractor must comply with all applicable requirements of federal and state civil-rights law and rehabilitation statutes and must 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.

13. Tax-Compliance Warranty (Required by ORS 279B.045). Contractor represents and warrants that it has complied with the applicable tax laws of the State of Oregon or a political subdivision of the State of Oregon (collectively, the “Tax Laws”), including but not limited to ORS 305.620 and ORS Chapters 316, 317, and 318. Contractor covenants that it will continue to

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-7-comply with the Tax Laws during the term of this Agreement. Contractor’s failure to comply with the Tax Laws before the execution of this Agreement or during the term of this Agreement is a default for which DISTRICTS may terminate this Agreement and seek damages and other relief available under the terms of this Agreement or applicable law.

14. Payment of Laborers (Required by ORS 279B.220). The Contractor shall:

a. Make payment promptly, as due, to all persons supplying to such Contractor labor or material for the prosecution of the work provided for under this Agreement;

b. Pay all contributions or amounts due the Industrial Accident Fund by the Contractor or subcontractors, if permitted, incurred in the performance of this Agreement;

c. Not permit any lien or claim to be filed or prosecuted against the DISTRICTS on account of any labor or material furnished; and

d. Pay to the Department of Revenue all sums withheld from employees pursuant to

ORS 316.167.

1. If the Contractor 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, the DISTRICTS may pay such claim to the person furnishing the labor or services and charge the amount of the payment against funds due or to become due the Contractor by reason of such Agreement.

2. The payment of a claim in this manner shall not relieve the Contractor or the Contractor’s surety, if any, from obligation with respect to any unpaid claims.

15. Condition Concerning Salvaging, Recycling, Composting or Mulching Waste Material (Required by ORS 279B.225.) If this Agreement involves lawn or landscape maintenance, the Contractor shall salvage, recycle, compost or mulch yard waste material at an approved site, if feasible.

16. Hours of Labor (Required by ORS 279B.020, 279B.235).

a. Contractor shall not employ any person for more than 10 hours in any one day, or 40 hours in any one week, except in cases of necessity, emergency, or where the public policy absolutely requires it, and in such cases, except in cases of contracts for personal services as defined in ORS 279A.055, the laborer shall be paid at least time and a half pay:

1. For all overtime in excess of eight hours a day or 40 hours in any one week when the work week is five consecutive days, Monday through Friday; and

2. For all overtime in excess of 10 hours a day or 40 hours in any one week when the work week is four consecutive days, Monday through Friday; and

3. For work performed on Saturday and on any legal holiday specified in any applicable collective bargaining agreement or ORS 279B.020 (1)(b)(B) to (G).

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b. The requirement to pay at least time and a half for all overtime worked in excess of 40 hours in any one week, does not apply to individuals who are excluded under ORS 653.010 to 653.261 or under 29 U.S.C. Section 201 to 209 from receiving overtime.

c. Contractor must give notice in writing to its employees who perform work under this Agreement, at the time of hire, before commencement of work under 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 might be required to work.

d. Contractor must comply with ORS 652.220 (addressing the prohibition of discriminatory wage rates based on sex and of employer discrimination against an employee who is a complainant). Compliance is a material element of this Agreement. Failure to comply is a breach that entitles DISTRICTS to terminate this Agreement for cause. Additionally, Contractor may not prohibit any of Contractor’s employees from discussing the employee’s wage, salary, benefits, or other compensation with another employee or another person, and Contractor may not retaliate against an employee who does so.

17. Payment for Medical Care and Workers Compensation (Required by 279B.230)

a. Contractor 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 the Contractor, of all sums that the Contractor agrees to pay for the services and all moneys and sums that the Contractor 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 or employers that are exempt under ORS 656.126. Workers' Compensation Exemption Form – Exhibit 4 must be completed if Contractor is exempt from this requirement.

Contractor has verified that agents, individuals, or business entities who are providing labor or services as independent contractors for Contractor under this Agreement are in compliance with Oregon workers’ compensation requirements and have obtained such insurance if required. This requirement remains in place for the duration of the Agreement. Upon request of the District, Contractor will provide satisfactory proof of these other persons’ or entities’ compliance with Oregon workers’ compensation requirements.

18. UNITED STATES ARMY CORPS OF ENGINEERS (“USACE”) Requirements

a. Contractor acknowledges that the DISTRICTS will enter into a Project Partnership Agreement (“PPA”) with the Department of the Army (the “Government”). The PPA may impose certain requirements and restrictions on the District that apply to the Contractor’s provision of Services under this Agreement. Contractor will comply with any such requirements and restrictions in its performance of the Services, including but not limited to those under Article III, Real Property Interests, Placement Area Improvements, and Relocations; and Article V, Credit for Real Property Interests, Placement Area Improvements, Relocations, and In-Kind Contributions.

b. Contractor acknowledges that the DISTRICTS are eligible for in-kind contribution credits under Section 221 of of the Flood Control Act of 1970, as further amended by Section 1018 of

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-9-the Water Resources Reform and Development Act of 2014 (WRRDA 2014) (42 U.S.C. 1962d- 5b(a)(4)). As such, the DISTRICTS are required to comply with all applicable Federal laws and implementing regulations, including, but not limited to Section 601 of the Civil Rights Act of 1964, as amended (42 U.S.C. 2000d), and Department of Defense Directive 5500.11 issued pursuant thereto; the Age Discrimination Act of 1975 (42 U.S.C. 6102); the Rehabilitation Act of 1973, as amended (29 U.S.C. 794), and Army Regulation 600-7 issued pursuant thereto; and 40 U.S.C. 3141-3148 and 40 U.S.C. 3701-3708 (labor standards originally enacted as the DavisBacon Act, the Contract Work Hours and Safety Standards Act, the Copeland Anti- Kickback Act); and the National Environmental Policy Act (42 U.S.C. 4321-4347) and other environmental laws and regulations (collectively, the “USACE Required Laws”). Contractor will comply with the USACE Required Laws in its provision of Services under this Agreement.

19.Non-Appropriation/Adequate Funding

a. If payment for Services under this Agreement extends into the DISTRICT’s next fiscal year, DISTRICT’s obligation to pay for such Services is subject to approval of future appropriations to fund this Agreement and individual Contracts by the DISTRICT’s Board of Supervisors or Directors.

b. Continuation of this Agreement, at specified levels, is conditioned on adequate funding under the DISTRICT’s budget adopted in June of each year. DISTRICT reserves the right to adjust the level of Services in accordance with funding levels adopted.

20. Remedies. In the event of breach of this Agreement, an individual Contract, or both, the parties shall have the following remedies:

a. If this Agreement is terminated under Section 10(c) or 10(d) by the DISTRICTS due to a breach by the Contractor, the DISTRICTS may complete the Services either themselves, by agreement with another contractor, or by a combination thereof. If the cost of completing the Services exceeds the remaining unpaid balance of the total compensation provided under this Agreement then the Contractor shall pay to the DISTRICTS the amount of the reasonable excess.

b. If an individual Contract is terminated under Section 10(c) or 10(d) by a DISTRICT due to a breach by the Contractor, the DISTRICT may complete the Services to be provided under that Contract either itself, by agreement with another contractor, or by a combination thereof. If the cost of completing the Services under the Contract exceeds the remaining unpaid balance of the total compensation provided under the Contract, then the Contractor shall pay to the DISTRICT the amount of the reasonable excess.

c. In addition to the remedies in this Section 20, Section 9, and Section 10 for a breach by the Contractor, the DISTRICTS also shall be entitled to any other equitable and legal remedies that are available.

d. If the DISTRICTS breach this Agreement, or if a DISTRICT breaches an individual Contract, Contractor’s remedy shall be limited to termination of this Agreement or termination of the individual Contract, respectively, and receipt of Contract payments to which Contractor is entitled.

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21. Hazardous Chemicals. Contractor shall notify the DISTRICTS prior to using products containing hazardous chemicals to which DISTRICTS’ employees, board members, or guests may be exposed. Products containing hazardous chemicals are those products as defined in OAR Chapter 437. Upon request by any DISTRICT, Contractor shall immediately provide Materials Safety Data Sheets.

22. Errors. The Contractor shall perform such additional work as may be necessary to correct errors in the Services required under this Agreement without undue delays and without additional cost.

23. Limitation on Role of DISTRICT. Neither this Agreement nor the providing of Services will operate to make any DISTRICT an owner, operator, generator, transporter, treater, storer, or arranger within the meaning of the Comprehensive Environmental Response Compensation and Liability Act, the Resource Conservation Recovery Act, and equivalent state and local laws, nor a discharger of any pollutant under the Clean Water Act and equivalent state and local laws; and except as restricted by the Oregon Tort Claims Act, the Contractor shall indemnify, defend, and hold DISTRICTS harmless from any claims, suits, losses, costs, and expenses arising from such basis, including, but not limited to court costs and reasonable attorney’s fees, at trial and on appeal, incurred as a result of any claims, demands, suits, charges, or allegations of responsibility by any and all third parties including but not limited to contractors, subcontractors, agents, employees, assignees, transferees, successors, invitees, neighbors, and the public relating, except to the extent that a claim is the result of the negligence or willful acts or omissions of

DISTRICTS.

24. Access to Records. The Contractor agrees that the DISTRICTS and their authorized representatives shall have access to the books, documents, papers, and records of the Contractor which are directly pertinent to this Agreement for the purpose of making audit, examination, excerpts and transcripts.

Contractor shall maintain all fiscal records directly relating to this Agreement in accordance with generally accepted accounting principles. In addition, Contractor shall maintain any other records pertinent to this Agreement in such a manner as to clearly document Contractor’s performance. Contractor acknowledges and agrees that a DISTRICT’s duly authorized representatives shall have access to such fiscal records and other books, documents, papers, plans and writings of Contractor that are pertinent to this Agreement to perform examinations and audits and make excerpts and transcripts. Contractor shall retain and keep accessible all such fiscal records, books, documents, papers, plans, and writings for a minimum of 10 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.

The Government may impose obligations on the DISTRICTS under the PPA regarding maintenance of, and access to, records. In addition to the requirements above, Contractor will comply with any additional requests by the DISTRICTS regarding maintenance of, and access to, the records described in this Section 24 if such requirements are necessary for the DISTRICTS to comply with similar requirements under the PPA.

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25. Ownership of Work. All work products created by the Contractor as part of Contractor’s performance of this Agreement, including background data, documentation and staff work that is preliminary to final reports, shall be the exclusive property of the DISTRICTS. If any such work products contain intellectual property of the Contractor that is or could be protected by federal copyright, patent, or trademark laws, Contractor hereby grants the DISTRICTS perpetual, royalty-free, fully paid-up, non-exclusive and irrevocable license to copy, reproduce, deliver, publish, perform, dispose of, use, re-use, in whole or in part, and to authorize others to do so, all such work products. The DISTRICTS shall have no rights in any pre-existing work product of Contractor provided to the DISTRICTS by Contractor in the performance of this Agreement except to copy, use, and re-use any such work product for DISTRICTS’ use only.

If this Agreement, an individual Contract, or both is terminated by either party or by default, the DISTRICTS, in addition to any other rights provided by this Agreement, may require the Contractor to transfer and deliver such partially completed work products, reports or other documentation that the Contractor has specifically developed or specifically acquired for the performance of this Agreement.

26. Security. Any disclosure or removal of any matter, property, or both on the part of the Contractor or Contractor’s employees shall be cause for immediate cancellation of this Agreement, any individual Contract, or both. Any liability, including, but not limited to, attorney’s and expert’s fees, resulting from any action or suit brought against any DISTRICT as a result of the Contractor’s or Contractor’s employees’ willful or negligent release of information, documents, or property contained in or on any DISTRICT’s property shall be borne by the Contractor. All information, documents and property contained within these facilities shall be considered privileged and confidential.

27. Compliance with Applicable Law. Contractor shall comply with (1) all federal, state, and local laws applicable to public contracts and to the Services performed under this Agreement, including but not limited to the federal, state, and local laws specified elsewhere in this Agreement, and including all regulations and administrative rules established pursuant to those laws, and (2) all applicable policies, procedures, rules, and other protocols of the DISTRICT and MCDD that have been made available to Contractor.

28. Authority to Transact Business. Contractor represents and warrants that Contractor is properly registered to transact business in every jurisdiction where such registration is required.

29. Public Employee Retirement System. Contractor represents and warrants that

(a) Contractor is not active as an employee in the Public Employee Retirement System, and

(b) Contractor has not received wages from any DISTRICT or any other public entity during the calendar or fiscal year in which this Agreement is signed.

30. Indemnity and Hold Harmless. Contractor shall defend, indemnify, and hold harmless the DISTRICTS and their respective officers, agents and employees, from, for, and against all liability, loss, costs, or expenses, including expert’s and attorney's fees, and against all claims, actions, or judgments based upon or arising out of damage or injury (including death) to persons or property caused by (a) any negligent act or omission of an act by Contractor, a subcontractor, or anyone for whose acts they may be liable, sustained in any way in connection with the

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-12-performance of this Agreement, a Contract, or both, or by conditions created thereby,

(b) Contractor’s breach of this Agreement, a Contract, or both, or (c) or violation of any statute, ordinance or regulation by Contractor, a subcontractor, or anyone for whose acts they may be liable. This contractual indemnity provision does not abrogate common law or statutory liability and indemnification to the DISTRICTS, but is in addition to such common law or statutory provisions.

31. Insurance. Contractor shall provide insurance in accordance with Exhibit 2. Requirements set forth in Exhibit 2 shall also apply to any subcontractors.

32. Amendments. Any amendments, consents to, or waivers of the terms of this Agreement shall be in writing and signed by all parties, except that amendments changing the amount of a Compensation Cap will be made solely by the DISTRICTs amending their respective Compensation Cap(s) and Contractor. Any amendments, consents, or waivers to the terms of a Contract shall be in writing and signed by all parties to the Contract.

33.Waiver. Waiver of any default under this Agreement by the DISTRICTS shall not be deemed to be a waiver of any subsequent default or a modification of the provisions of this Agreement.

34. Governing Law. The provisions of this Agreement shall be construed in accordance with the laws of the State of Oregon and rules of the DISTRICTS, as the rules appear at the time of signing or any subsequent addenda. Any legal action involving any question arising under this Agreement must be brought in Multnomah County Circuit Court. If the claim must be brought in a federal forum, then it shall be brought and conducted in the United States District Court for the State of Oregon.

35. Severability. If any term or provision of this Agreement is declared by a court of competent jurisdiction to be illegal or in conflict with any law, the validity of the remaining terms and provisions shall not be affected, and the rights and obligations of the parties shall be construed and enforced as if this Agreement did not contain the particular term or provision held invalid.

36. Merger Clause. This Agreement and the attached exhibits constitute the entire agreement between the parties. All understandings and agreements between the parties and representations by either party concerning this Agreement are contained in this Agreement.

37. Notices and Communications.

a. Notices and communications between the parties to this Agreement and individual Contracts must be sent to the following individuals at the following addresses:

DISTRICT

[Name of District Contact] [Title of District Contact] Multnomah County Drainage District No.1 1880 N.E. Elrod Drive Portland, OR 97211 503.281.5675

Contractor [Name of Contractor Contact] [Title of Contractor Contact]

[FULL LEGAL NAME OF

CONTRACTOR]

[Contractor Address] [Contractor City, ST, Zip]

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503.281.0392 (fax) [Email@mcdd.org]

[Contractor Phone] [Contractor Fax] [Email@xxx.xxx]

Informal communications pertaining to an individual Contract should be sent solely to the point of contact listed in the Contract Task Order.

The party giving notice will provide notice in writing, dated and signed by a duly authorized representative of that party. Notice is not effective for any purpose whatsoever unless served in one of the following manners:

1. If notice is given by personal delivery, it is deemed delivered on the day of delivery.

2. If notice is given by overnight delivery service, it is deemed delivered one day after the date deposited, as indicated by the delivery service.

3. If notice is given by United States mail, it is deemed delivered three days after the date deposited as indicated by the postmarked date.

4. If notice is given by registered or certified mail with postage prepaid, return receipt requested, it is deemed delivered on the day the notice is signed for.

38. Applicablity of Terms. As used in Sections 5, 9, 11, and 19 of this Agreement, and as used in Exhibit 1 to this Agreement, the term “DISTRICT” refers to the DISTRICT issuing a Task Order and creating an individual Contract, the terms of which those Articles and Exhibit 1 are a part. The liabilities and obligations of a DISTRICT under a Contract do not extend to any DISTRICT that is not a party to that Contract.

39. 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 Agreement.

40. Additional Workers' Compensation Requirements. Contractor has verified that agents, individuals, or business entities who are providing labor or services as independent contractors for Contractor under this Agreement are in compliance with Oregon workers’ compensation requirements and have obtained such insurance if required. This requirement remains in place for the duration of the Agreement. Upon request of any DISTRICT, Contractor will provide satisfactory proof of these other persons’ or entities’ compliance with Oregon workers’ compensation requirements.

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CONTRACTOR DATA AND SIGNATURE

Business Name: [FULL LEGAL NAME OF CONTRACTOR] Business Address:

Contractor Phone:

Contractor Email Address:

Federal Tax ID# or Social Security No.:

Oregon Business License # (if applicable):

Is Contractor a nonresident alien? Yes No Business Designation (check one): Sole Proprietorship Partnership Corporation-for profit Corporation-non-profit [Other - Please Define]

Federal tax ID numbers or Social Security numbers are required pursuant to ORS 305.385 and will be used for the administration of state, federal, and local laws. Payment information will be reported to the Internal Revenue Service under the name and Federal tax ID number or, if none, the Social Security number provided above.

I have read this Agreement including the attached Exhibits. I certify that I have the authority to sign and enter into this Agreement. I understand this Agreement and agree to be bound by its terms.

Signature Title

Name (please print) Date

NOTE: Contractor must also sign Exhibit 3 and (if attached) Exhibit 4.

[Districts signatures follow on next page]

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DISTRICTS

Multnomah County Drainage District No. 1

Signature

Printed Name

Title

Date of Signature

Peninsula Drainage District No. 1

Peninsula Drainage District No. 2

Sandy Drainage Improvement Company

Columbia Corridor Drainage Districts Joint Contracting Authority

Addendum Page 16 of 25

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EXHIBIT 1

Personal Services Price Agreement

STATEMENT OF WORK, COMPENSATION, and INVOICING REQUIREMENTS

1. Statement of Work: Contractor shall perform the following services (the “Services”) as authorized by DISTRICT(s) in a Task Order:

Pull from RFP or “See Contractor’s Proposal, Attachment A to this Exhibit 1” or “As described in Exhibit 6 “Contractor’s Proposal”.

2. Compensation: All payments to Contractor are subject to the following limitations:

a. Amounts charged by Contractor to DISTRICT, including rates and expenses, must be in accordance with Exhibit 5.

b. Mark-up of subcontractors may not exceed [insert].

c. Mark-up on expenses may not exceed [insert].

3. Invoicing Requirements: Contractor will invoice the DISTRICT in accordance with Agreement Section 11(a) and as detailed below:

a. Contractor may send invoices to DISTRICT by email or by mail, but not both.

1. If sent by email, Contractor shall email invoices to invoices@mcdd.org and carbon copy to name listed on Task Order as DISTRICT’s Point of Contact.

2. If sent by mail, Contractor shall send to DISTRICT listed in the Task Order, with the address in the following format:

"DISTRICT NAME

c/o [Name of Point of Contact on Task Order] 1880 NE Elrod Drive Portland, OR 97211"

b. All invoices must include at a minimum:

1. DISTRICT name and address as shown above.

2. The Agreement Number and Task Order Number.

3. The period of Services performed and being invoiced.

4. A description of the Services performed during the period.

5. The total amount due per invoice.

6. Prior billing.

7. The rates and hours worked by each job classification during the period.

8. Pre-approved expenses and necessary documentation. Expenses that are not pre-approved may, in DISTRICT’s sole discretion, not be paid.

9. A clear indication whether an invoice is a final invoice for the Contract.

c. DISTRICT will pay all invoices approved by the DISTRICT within 30 days of DISTRICT’s receipt of an invoice. Within 14 days of receipt of an invoice from Contractor, DISTRICT will notify Contractor if the invoice will not be approved

Addendum Page 17 of 25 mailto:invoices@mcdd.org

-17-because it requires revisions to comply with this Section 3. If required to be revised, the DISTRICT will again have 14 days from receipt of the revised invoice to notify the Contractor that the invoice requires revisions to comply with Section 3. DISTRICT will pay approved, re-submitted invoices with 30 days of receipt.

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

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EXHIBIT 2

INSURANCE REQUIREMENTS

Contractor shall procure, prior to commencement of the Services of this Agreement, and shall maintain for the duration of this Agreement, insurance against claims for injuries to persons or damages to property that may arise from or in connection with the performance of the Services hereunder by Contractor, its agents, representatives, employees, and subcontractor(s).

Contractor’s liabilities, including but not limited to Contractor’s indemnity obligations under this Agreement, will not be deemed limited in any way to the insurance coverage required herein.

Maintenance of specified insurance coverage is a material element of this Agreement, and Contractor’s failure to maintain or renew coverage or to provide evidence of renewal during the term of this Agreement, as required or when requested, may be treated as a material breach of this Agreement by DISTRICTS. Coverage shall be at least as broad as the following scopes and limits:

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. Contractor and all subcontractors of Contractor with one or more employees must have this insurance unless exempt under ORS 656.027 (See Exhibit 4).

THIS COVERAGE IS REQUIRED. Attach Certificate of Insurance. If Contractor does not have coverage and claims to be exempt, complete Exhibit 4 in lieu of Certificate.

Professional Liability/E&O insurance with a combined single limit of not less than

$500,000, $1,000,000, $2,000,000 each claim, incident, or occurrence, with an annual aggregate limit of $500,000, $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 termination or expiration of this Agreement.

Required by DISTRICTS Not required by DISTRICTS

Commercial General Liability insurance, on an occurrence basis, with a limit of not less than

$500,000, $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 $500,000, $1,000,000, $2,000,000 each occurrence for Bodily Injury and Property Damage, including coverage for owned, hired, or non-owned vehicles.

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Additional Requirements. Coverage must be provided by an insurance company admitted to do business in Oregon or rated A- or better by Best’s Insurance Rating. Contractor 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. Contractor’s coverage will be primary in the event of loss.

Certificate(s) of Insurance Required. Contractor shall furnish a current Certificate(s) of Insurance to the DISTRICTS, either digitally or in hard copy (with digital being DISTRICTS’ preference) prior to execution of this Agreement. The Certificate(s) shall also state the deductible or retention level. For commercial general liability and commercial automobile liability, the Certificates shall also provide that the DISTRICTS and their respective agents, officers, and employees are additional insureds with respect to Contractor’s or subcontractor’s services to be provided under this Agreement. An additional insureds endorsement shall be attached to the certificate of insurance. No Services shall commence until the DISTRICTS receive the certificate and additional insured endorsement. If requested, complete copies of insurance policies shall be provided to the DISTRICTS.

Notice of Cancellation Required. Contractor shall provide notice to the DISTRICTS in writing at least 30 days before cancellation, lapse, or expiration of any insurance required under this Agreeement.

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EXHIBIT 3

Certification Statement for Corporation or Independent Contractor

NOTE: Contractor Must Complete A or B below:

A. CONTRACTOR IS A CORPORATION, LIMITED LIABILITY COMPANY, OR

A PARTNERSHIP

I certify under penalty of perjury that Contractor is a [check one]:

Corporation Limited Liability Company Partnership authorized to do business in the State of Oregon.

Signature Title Date

B. CONTRACTOR IS A SOLE PROPRIETOR WORKING AS AN INDEPENDENT

CONTRACTOR

Contractor certifies under penalty of perjury that the following statements are true:

1. If Contractor is providing labor or services under this Agreement for which registration is required under ORS Chapter 701, Contractor has registered as required by law, and

2. If Contractor performed labor or services as an independent Contractor last year, Contractor filed federal and state income tax returns last year in the name of the business (or filed a Schedule C in the name of the business as part of a personal income tax return), and

3. Contractor represents to the public that the labor or services Contractor provides are provided by an independently established business, and

4. All of the statements checked below are true.

NOTE: Check all that apply. You must check at least four (4) to establish that you are an Independent Contractor.

A. The labor or services I perform is primarily carried out at a location that is separate from my residence or is primarily carried out in a specific portion of my residence which is set aside as the location of the business.

B. I purchase commercial advertising or I have business cards for my business, or I am a member of a trade association.

C. My business telephone listing is separate from my personal residence telephone listing.

D. I perform labor or services only under written contracts.

E. Each year I perform labor or services for at least two different persons or entities.

F. I assume financial responsibility for defective workmanship or for service not provided by purchasing performance bonds, errors and omission insurance or liability insurance, or providing warranties relating to the labor or services I provide.

Contractor Signature Date

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EXHIBIT 4

WORKERS’ COMPENSATION EXEMPTION FORM

IF CONTRACTOR DOES NOT HAVE CURRENT WORKERS’ COMPENSATION

INSURANCE, CONTRACTOR MUST COMPLETE THE FOLLOWING

CERTIFICATION STATEMENT:

Contractor certifies it is exempt from the requirement to obtain workers' compensation insurance under ORS Chapter 656 for the following reason (check the appropriate box).

SOLE PROPRIETOR

• Contractor is a sole proprietor, and

• Contractor has no employees, and

• Contractor will not hire employees to perform any services under this Agreement.

CORPORATION - FOR PROFIT

• Contractor's business is incorporated; and

• All employees of the corporation are officers and directors and have a substantial ownership interest in the corporation; and

• All work will be performed by the officers and…