Attachment 2 RFP 00002647 Bull Run Dam 1 and 2 FERC Part 12D Study.pdf

Contract #_________ Page 1 of 49 Project #_________ Version 7/2021

CITY OF PORTLAND

CONTRACT FOR

Bull Run Dam 1 and 2 FERC Part 12D Study Contract Number: 3XXXXXXX

As authorized by Oregon Revised Statutes (ORS) 279A and Portland City Code (PCC) 5.10, this Contract is made effective on ___________ (“Effective Date”) by and between the City of Portland (“City”), a municipal corporation of the State of Oregon, and _____________ (“Contractor”), a(n) ________ corporation, by and through their duly authorized representatives. This Contract may refer to the City and Contractor individually as a “Party” or jointly as the “Parties.”

with the City’s option to renew for an additional 5 years for a total of 10 years. The total not-to-exceed amount under this Contract for the initial Term shall be $_______________. (04/20)

Party contacts and Contractor’s and City’s Project Manager for this Contract are:

For City of Portland: For Contractor:

Name: Name:

Title: Title:

Address: Address:

City, State: City, State:

e-mail: e-mail:

Copy to: Destinee Strickland Copy to:

Procurement Services 1120 SW 5th Ave.

Portland OR 97204

Scope and Consideration (9/19)

(a) Contractor shall perform the Services and provide the Goods and Deliverables set forth in the Statement of Work by the due dates specified in the Contract.

(b) City agrees to pay Contractor a sum not to exceed $_________ for accomplishment of the Project.

(c) Payments shall be made to Contractor according to the schedule identified in Exhibit A, the Contractor’s Price.

Recitals:

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WHEREAS, to further its government operations, the City of Portland desires to maintain water sources, public health, community relationships, and planning ahead (the “Project”); and

WHEREAS, the City issued Request for Proposal (RFP) 00002641 for Bull Run Dam 1 and 2 FERC Part 12D Study

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

WHEREAS, the City selected Contractor based on its Proposal;

THE PARTIES HEREBY AGREE AS FOLLOWS:

SECTION 1 DEFINITIONS (11/18)

General Definitions. (11/18) These definitions apply to the entire Contract, subsequent Amendments, and any Change Orders or Task Orders, unless modified in an Amendment. If any definition contains a substantive provision conferring rights and/or obligations upon a Party, then effect shall be given to the substantive provision.

“Acceptance” (11/18) means the Deliverable demonstrates to the City’s satisfaction that the Deliverable conforms to and operates according to the Acceptance Criteria, and if required, has successfully completed Acceptance Testing, and for Deliverables not requiring Acceptance Testing that the Deliverable conforms to the Acceptance Criteria or the City’s Specifications.

“Acceptance Certificate” (11/18) means a written instrument by which the City notifies Contractor that a Deliverable has been Accepted or Accepted with exceptions, and Acceptance Criteria have been met or waived, in whole or in part.

“Acceptance Criteria” (11/18) means functionality and performance requirements determined by the City, based upon the Specifications, which must be satisfied prior to City’s Acceptance of a Deliverable. City and Contractor shall agree upon written Acceptance Criteria.

“Acceptance Date” (11/18) means the date on which the City issues an Acceptance Certificate for the Deliverable(s).

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“Acceptance Test” (11/18) means the evaluation and testing method, procedures, or both, that are used to determine whether or not a Deliverable requiring Acceptance Testing performs in accordance with the Acceptance Criteria.

“Affiliates” (11/18) means, for Contractor, any individual, association, partnership, corporation or other entity controlling, controlled by, or under common control. The term “control” means the power to direct or cause the direction of the management and policies of an individual or entity, whether through the ownership of voting securities, by contract, agreement or otherwise.

“Amendment” (12/18) means a written document required to be signed by both Parties when in any way altering the Master Terms and Conditions of the Contract, Contract amount, or substantially altering a Statement of Work.

“Business Day” (11/18) means a twenty-four hour day, excluding weekends and City holidays, beginning at midnight and ending at midnight twenty-four hours later.

“Calendar Day” (11/18) means a twenty-four hour day, including weekdays, weekends and holidays, beginning at midnight and ending at midnight twenty-four hours later.

“Change Order” (12/18) means a document, agreed and signed by both Parties, that changes an existing Statement of Work or Task Order. Change Orders cannot change Contract amount or Master Terms and Conditions.

“Confidential Information” (07/21) means any information that is disclosed in written, graphic or machine-recognizable form and is marked or labeled at the time of disclosure as being Confidential or its equivalent, or, if the information is in verbal or visual form, it is identified as Confidential or proprietary at the time of disclosure, or a reasonable time thereafter.

Information shall always be considered Confidential Information, whether or not it is marked or identified as such, if it is described by one or more of the following categories: (1) non-public financial, statistical, personnel, human resources data or Personally Identifiable Information as described in the Oregon Consumer Information Protection Act; (2) business plans, negotiations, or strategies; (3) unannounced pending or future products, services, designs, projects or internal public relations information; (4) trade secrets, as such term is defined by Oregon Public Records Laws and the Uniform Trade Secrets Act; (5) information which is exempt from disclosure per Oregon Public Records Law; (6) attorney/client privileged communications; (7) information which is exempt per federal laws (including but not limited to copyright, HIPPA); and (8) information relating to or embodied by designs, plans, configurations, specifications, programs, or systems including without limitation, data and information systems, any software code and related materials and processes, Customizations, Configurations, Updates, Upgrades; and any Documentation. Confidential Information does not include any information that: is or becomes publicly known through no wrongful or negligent act of the receiving Party; is already lawfully known to the receiving Party without restriction

Contract #_________ Page 4 of 49 when it is disclosed; is, or subsequently becomes, rightfully and without breach of this Contract or any other agreement between the Parties or of any applicable protective or similar order, in the receiving Party’s possession without any obligation restricting disclosure; is independently developed by the receiving Party, as shown by reasonable written documentation, without breach of this Contract; or is explicitly approved for release by written authorization of the disclosing Party.

“Contract” (11/18) means the Master Terms and Conditions including all exhibits, attachments and schedules and their constituent parts listed in the Order of Precedence or incorporated by reference.

“Contract Price” (11/18) means the not-to-exceed price agreed upon by the Parties for all Goods and Services.

“Deliverable(s)” (11/18) means the Goods, Services, Documentation or documents or tangible work products described in the Statement of Work to be provided to the City by Contractor under this Contract.

“Documentation” (11/18) means user manuals and other written materials in any form that describe the features or functions of the Goods and Services, including but not limited to published specifications, online instructions and help, marketing materials, technical manuals, and operating instructions provided by Contractor to the City, or readily available to the public, or as required to be produced by Contractor subject to the terms of this Contract.

“Equipment” (11/18) means any hardware, machinery, device, tool, including add-ons, or peripherals of tangible form together with the necessary supplies for upkeep and maintenance, and other apparatus necessary for the proper implementation and operation of the Goods or Services to be provided to the City by Contractor under this Contract.

“Defect” (11/18) means any error, problem, condition, bug, or other partial or complete inability of a Service, Good or component thereof, to operate in accordance with the applicable Specifications.

“Final Acceptance” (11/18) means the City has determined that all Deliverables have successfully completed Acceptance Testing, which demonstrates to the City’s satisfaction that all Deliverables conform to and operate according to the Acceptance Criteria, applicable Documentation, and Contractor’s representations; and that for Deliverables not requiring Acceptance Testing, that the Deliverables conform to the Acceptance Criteria or the City’s specified requirements.

“Force Majeure Event” (4/2020) means an exceptional, unforeseeable and unavoidable occurrence beyond the reasonable control of the affected Party, such as, riots, epidemics, war, Contract #_________ Page 5 of 49 government regulations, labor disputes, fire, natural phenomena, or other causes beyond such Party’s reasonable control.

“Good(s)” (11/18) means the items provided by Contractor to the City under this Contract, as outlined in the Statement of Work.

“Intellectual Property Rights (IPR)” (11/18) means any patent rights, copyrights, trade secrets, trade names, service marks, trademarks, trade dress, moral rights, know-how and any other similar rights or intangible assets to which rights of ownership accrue, and all registrations, applications, disclosures, renewals, extensions, continuations, or reissues of the foregoing now or hereafter in force.

“Key Personnel” (11/18) means the specific individuals identified in Section XXXX to fill Key Positions.

“Key Position” (11/18) means a job position critical to the success of the Project as identified in Section 3.14 of this Contract.

“Master Terms and Conditions” (11/18) means the body of text from the preamble through the signature page of this Contract.

“Material Breach” (11/18) means any breach of this Contract that causes, caused, or may cause substantial harm to the non-breaching Party or substantially deprives the non-breaching Party of the benefit it reasonably expected under this Contract.

“Personally Identifiable Information (PII)” (07/21) means information that can be used on its own or with other information to identify, contact, or locate a single person, or to identify an individual in context, as described in the Oregon Consumer Information Protection Act.

“Project” (6/19) means the overall delivery of the Goods all related Services including, without limitation, design, development, integration, implementation, testing, support and Maintenance, and any Deliverables any of which Contractor may be providing in whole or in part.

“Proposal” (11/18) means Contractor’s response to the City’s RFP referenced on page one of this Contract.

“Repair(s)” (11/18) means to fix, patch, reprogram, or replace the System, or a component thereof, to eliminate Defects to the City’s satisfaction.

“Services” (11/18) means both ordinary and professional services performed by Contractor under this Contract.

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“Specifications” (11/18) means the most current cumulative statement of capabilities, functionality, and performance requirements for the System and its components as set out in the Acceptance Criteria, Change Orders, the Statement of Work, Documentation, Contractor’s representations, Contractor’s Proposal and Proposal Clarifications, and the City’s Request for Proposals.

“Statement of Work” (SOW) (11/18) means the written detailed specifications of the Product(s) and Services(s) to be delivered to the City by Contractor, including any Change Orders or Task Orders subject to the terms and conditions of this Contract.

“Subcontractor” (11/18) means any person or entity under the control of Contractor, other than an employee of Contractor, utilized by Contractor to perform all or part of this Contract.

“System” (11/18) means the operational combination of all Goods and Services to be provided by Contractor to City under this Contract.

“Task Order” (11/18) means any written request or document issued by the City and signed by both Parties for additional Product(s) or Service(s) to be provided under this Contract. Task Orders shall document the description of Goods and/or Services, price, payment schedule, Project and performance schedule, due dates, milestones and Deliverables.

“Term” (11/18) means the period of time that this Contract is in effect as stated on page one.

SECTION 2 ORDER OF PRECEDENCE

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

1. Amendments

2. Master Terms and Conditions

3. Exhibit A, Contractor’s Price

4. Change Orders

5. Exhibit B, Statement of Work

6. Exhibit X

7. Exhibit C, City RFP 00002641

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8. Exhibit D_, Contractor’s Proposal

9. Exhibit E - Sample Documents: E-1, Sample Status Reports, E-2 Certificate of

Acceptance, E-3 Change Order

10. Contractor’s Hyperlinks

SECTION 3 GENERAL AND ADMINISTRATIVE PROVISIONS

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

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

3.2.1 Written Notifications. (10/18) All notices to, and other written communication between the Parties shall be deemed received five (5) Business Days after being sent by first class mail, or upon receipt when sent by courier services, or by e-mail. All notices and written communications shall be sent to the Parties set forth on page 1 of the Contract, or to such other places as they may designate by like notice from time to time. Each Party shall provide written notice of any changes to the Party’s contacts within thirty (30) Calendar Days.

3.3 Changes to Contract.

3.3.1 Amendment of the Contract. (06/19) Any changes to the provisions of this Contract shall be in the form of an Amendment. No provision of this Contract may be amended unless such Amendment is approved as to form by the City Attorney and executed in writing by authorized representatives of the Parties. If the requirements for Amendment of this Contract as described in this section are not satisfied in full, then such Amendments automatically will be deemed null, void, invalid, non-binding, and of no legal force or effect. The City reserves the right to make administrative changes to the Contract unilaterally, such as extending option years and increasing compensation. An administrative change means a written Contract change that does not affect the substantive rights of the Parties.

3.3.2 Change Orders to a Statement of Work. (12/18) The City and Contractor can agree to make changes, at any time to a Statement of Work or Task Order in the form of a Change Order. Contractor agrees to timely alter the delivery of Products or Services accordingly. If such changes materially increase or decrease Contractor’s obligations, the Parties shall execute an Amendment to the Contract, and if the amount of such

Contract #_________ Page 8 of 49 adjustment is not calculable as a function of hours or tasks, the Parties shall negotiate in good faith a modified amount.

3.4 Delivery. (08/19) Contractor shall ship Products freight and insurance prepaid; F.O.B. the City’s designated location at the time indicated herein. Shipments will be complete and partial shipments will be avoided unless the City agrees in writing to the partial shipment in advance of such a shipment. The risk of loss or damage in transit shall be upon Contractor until a Product is received by the City at the delivery site. Delivery of Products shall not be deemed to be complete and title to Products shall not pass to the City until an Acceptance Certificate has been issued by the City.

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

3.4.2 Time is of the Essence. (06/19) The Parties agree that time is of the essence as to the delivery of Deliverables and performance of Services under this Contract. By executing this Contract and accepting the Statement of Work, Contractor agrees that the time limits specified in the Statement of Work are reasonable. By accepting late or otherwise inadequate performance of Contractor’s obligations, the City will not waive its rights to require timely performance of Contractor’s obligations thereafter.

3.4.3 Late Delivery. (06/19) In the event that any specified delivery date is not met, Contractor shall be liable for any loss, expense, or damage resulting from delay in delivery or failure to deliver Goods or provide Services which is due to any cause except as set forth in Force Majeure. In the event of delay due to any such cause, the City may obtain substitute Goods or Services from another source and bill all additional costs directly to Contractor who shall remain financially liable for all additional acquisition costs.

3.4.4 Best Efforts. (06/19) Contractor shall use best efforts to minimize any delay in the provision of Goods, Deliverables or performance of Services. If Contractor anticipates any delay that may prevent timely performance of Contractor’s obligations under this Contract, Contractor shall promptly notify the City, including the anticipated length of the delay, the cause of the delay, measures proposed or taken to prevent or minimize the delay, and the timetable for implementation of such measures.

3.4.5 Cancellation and Reschedule. (08/19) Unless otherwise set forth in Exhibit A, Contractor’s Price or Exhibit B, the Statement of Work, the City reserves the right to cancel or reschedule any order without penalty or charge, by giving written notice to Contractor at any time in advance of scheduled ship date.

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3.4.6 Lead Time. (08/19) Lead time for Goods shall be no longer than the lead time set forth in the Statement of Work.

3.5 Contractor and Subcontractor Reporting Requirements. (9/25) The City is required to track certain types of contract data for reporting purposes. Upon request by the City, Contractor must timely provide Contractor and Subcontractor demographic data and Subcontractor utilization that includes COBID Certified Firms data, Additionally, Contractor will timely provide Subcontractor/supplier payment information upon City’s request. The City will enforce all subcontracting commitments made by the Contractor.

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

3.6.1 Payment shall be issued 30 Calendar Days from receipt of a complete and acceptable invoice from Contractor. Contractor invoices must contain Contractor's name and address; invoice number; date of invoice; Contract number and date; project title, Project Manager's name, Water Bureau Contract Administration Branch (CAB) Representatives name (Andrew Urdahl), Purchase Order number (to be provided by Project Manager or CAB after execution of Contract), description of Goods and/or Services; quantity, unit price, hourly rates, (where appropriate), and total amount; City-required reporting, if any, and the title and phone number of the person to whom payment is to be sent. The City may stipulate how line items are entered on an invoice to ensure compatibility with the City's accounting and financial systems and to facilitate payment to Contractor.

3.6.2 Invoices shall be e-mailed directly by the Contractor to the Portland Water Bureau's Accounts Payable Department at wbaps@portlandoregon.gov

3.6.3 The Consultant shall enter all pertinent information below on their invoice for the City to review and authorize processing of invoices for payment.

A. Contract Number and Water Bureau's Project Title B. Invoice date C. Date range during which the services are being invoiced for work provided D. Invoice number that ends in a"##", which represents the correct invoice sequence of issue. The last invoice submitted on the Project must be clearly labeled "Final Invoice"

E. PWB PM's name F. Original Contract total, not to exceed amount broken out by: Task and Subtask (as applicable) G. Reflect additional funds associated with a Contract amendment(s) and show the revised/current Contract amount

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H. Paid-to-date amount showing the amount submitted prior to the current invoice (regardless of payment status)

I. Amount being invoiced for the current invoice J. Balance remaining on the Contract after receipt of payment for the current invoice .

K. Consultant shall describe all services performed with particularity and by whom it was performed (Consultant's L. individuals or subconsultant, labor category, direct labor rate, hours worked during the period) and shall itemize and M. explain all expenses for which reimbursement is claimed. If reimbursable expenses are authorized, identify by line item N. categories: I) Travel Expenses, and 2) General Reimbursable Expenses. Note:

Invoices for Basic Services under a O. specific Task shall be for completed Basic Services only and shall indicate the percentage of the total Basic Services for P. that Task that the amount invoiced represents Q. The Consultant shall also attach photocopies of claimed reimbursable expenses, as applicable and preapproved R. authorization document from the PWB PM S. The Consultant shall stamp and approve all subconsultant invoices and note on subconsultant invoice what they are T. approving as "billable" under the Contract U. The billing from the Consultant must clearly roll up labor and reimbursable costs for the prime and subconsultants - matching the subconsultant invoices

Prior to initial billing, the Consultant shall develop a billing format for approval by the City. Submission of the draft billing document shall be emailed to the PWB PM and the PWB Contract Representative, Andrew Urdahl for final review and approval.

3.6.4 The Consultant shall be compensated in accordance with the hourly rates set forth in attached Exhibit C - Prime Consultant Hourly Billing Rate Table. In no way shall the cost of hours billed by the Consultant exceed the total Contract amount throughout the term of this Contract.

3.6.5 Subconsultant Costs

Compensation for subconsultants shall be limited to the same restrictions imposed on the Consultant. Subconsultant services shall be billed at cost plus a 5% mark-up. Other Direct Expenses, as stated under Standard Reimbursable Costs, shall be billed at cost without mark-up. Allowable subconsultant services can only be marked up once. For example, the Prime is not allowed to markup on a second-tier subconsultant's allowable expenses if it has already been marked-up by the Prime's subconsultant. Mark-up is not allowable when using intergovernmental resources to complete work and will not be accepted.

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3.6.6 Standard Reimbursable Costs

The following costs shall be reimbursed without any mark-up: preapproved travel, including mileage (only travel beyond a 100-mile radius of Portland when specifically required by the Contract shall be reimbursed); daily per diem during travel and while to conduct work specifically associated to this Contract; document reproduction directly attributable to the Contract; preapproved food and non-alcoholic beverages for Project meetings directly attributable to the Contract; preapproved information technology equipment including computers, printers, and related equipment purchased by Consultant specifically for this Contract; and other preapproved reimbursable direct costs directly attributable to the Contract. There shall be no increased to any reimbursable(s) during the term of this Contract. The Consultant shall include a separate reimbursable line item on their submitted invoice(s) each month for applicable charges with all supporting documentation. This shall include any pre-approved travel and meals, while on approved travel (refer to Preapproval of Travel/Meals below).

3.6.6.1 Travel

It is the policy of the City that all travel shall be allowed only when the travel is essential to the normal discharge of the Consultant's responsibilities under the Contract. All travel must be for official City business only. All travel and lodging shall be conducted in the most efficient and cost-effective manner. Reimbursable direct costs include preapproved travel beyond a 100-mile radius of Portland. Travel shall be reimbursed as follows:

Airfare: Itemized receipts are required, and reimbursement is based on actual expenses incurred. All Consultant representatives shall fly "coach class" unless Consultant personally pays the difference. One checked bag fee is permitted per flight.

Rail Travel: Receipts are required, and reimbursement is based on actual expenses incurred. All Consultant representatives shall travel by "coach class" unless Consultant personally pays the difference. For overnight rail trips, reimbursement for sleeper accommodations is limited to one roomette per person. Bedrooms are allowed only when roomettes are not available, and Consultant must provide proof of no availability. Any upgraded travel requires Consultant to personally pay the difference.

Car rentals: Itemized receipts are required, and reimbursement is based on actual expenses incurred. All Consultant representatives shall be limited to economy or compact-sized rental vehicles unless there are three or more persons on official City business. Consultant shall pay the difference otherwise.

Taxis/Ride-sharing Services/Mass Transit/Parking/Tolls/Gas: Receipts are required, and reimbursement is based on actual expenses incurred. Reimbursable tips are limited to 15%. Use of mass transit is strongly encouraged.

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Private Vehicle Usage: This is not authorized under this Contract. No gas expenses will be reimbursed for private vehicle usage under this Contract.

Meals: Receipts are not required (but must be made available upon request or for an audit) and reimbursement is based on the U.S. General Services Administration's (GSA) Meal and Incidental Expenses (M&IE) rate and guidelines per the travel year and destination - h1tps://www. gsa.gov/travel/plan-book/per-diem-rates.

Lodging: Receipts are required, and reimbursement is based on GSA rates for the month and destination https://www.gsa.gov/travel/plan-book/per-diem-rates.

Expenses beyond the allowable GSA rates will NOT be reimbursed.

It is the responsibility of the Consultant to request and maintain in their possession itemized receipts for air, lodging, ground transportation, and registration fee (if any) expenses. Under no circumstance will the City reimburse the aforementioned expenses without a receipt.

All travel must be pre-approved in writing by the PWB Project Manager (PM) with the Consultant providing an estimated total cost of the travel. Reimbursements for travel shall include itemized receipts AND a summary page with the following information:

employee name, travel purpose, travel to/from locations, dates of travel, and list of expenditures for airfare, lodging, ground transportation, registration fee, and daily per diem requested. Daily per diem must be listed per day to reflect the amount charged per day minus any deductions for provided meals.

When submitting invoices, the Consultant shall include supporting documentation they have received from the PWB PM authorizing travel/meals along with all travel and meal receipts. PWB will not pay Consultant or their subconsultants for overnight or extended parking costs.

3.6.6.2 Preapproval of Travel/Meals

All travel and meals must be preapproved by the PWB PM in writing. The Consultant is required to notify the PWB PM regarding all travel they anticipate, including any travel beyond a l 00-mile radius of Portland and indicate why this travel would be necessary.

When requesting authorization for travel and meals, the Consultant shall include the estimated date/times when Key Personnel, either employed with the Consultant or as a subconsultant on the Contract, will be required to travel and how this is associated with the Contract as well as indicate the location and estimated costs for that travel. The Consultant shall include the purpose and reason why a local member would not be available to perform the work and why an alternate communication method could not be used. The Consultant shall provide the preapproved email or letter that authorized travel when submitting their monthly invoice for review and approval.

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3.6.6.3 Food and/or non-alcoholic beverages

Food and/or beverages may be provided to participants at training sessions, meetings or conferences that are allowable activities and have been preapproved by the PWB PM in writing. In addition, the agenda. list of participants and approval from the PWB PM must be included as an attachment to the monthly invoice submitted for the scheduled event. Expenses incurred for food and/or beverages provided at training sessions, meetings, or conferences must satisfy the following three (3) tests:

Test 1: The cost of the food and/or beverages provided is considered to a reasonable in cost.* Test 2: The food and/or beverages provided are incidental to a work-related event.

Test 3: The food and/or beverages provided are not related directly to amusement and/or social events.

Any event where alcohol is being served is considered a social event and, therefore, costs associated with that event are not allowable. *Reasonable in cost shall be defined as a price that is consistent with what a reasonable person would pay in the same or similar circumstances for the same business or for the same or similar item.

The Consultant and their subconsultants shall adhere to the following applicable definitions for food and beverages:

Food and/or beverages retain their common meanings.

Food and/or beverages are considered in the context of formal meals and in the context of refreshments served at short, intermittent breaks during an activity that supports the project under this Contract between the Consultant and the Water Bureau.

Beverages do not include alcoholic drinks.

3.6.6.4 Gratuity

Gratuity for food, transportation, and other allowable expenses will be reimbursed at the maximum rate of 15%. Any additional tipping beyond 15% shall be paid by the Consultant. Personal expenditures or expenditures not related to the Contract are not eligible for reimbursement.

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

3.7 Payment of Taxes/Contractor Shall Withhold. (09/17) Contractor shall, at its own expense, timely (a) pay all salaries, wages, and other compensation to its employees; (b) withhold, collect, and pay all applicable federal, state, and local income taxes (domestic

Contract #_________ Page 14 of 49 or foreign), FICA, Medicare, unemployment insurance and any other taxes or charges in connection with its employees; and (c) provide and pay for workers compensation insurance and any statutory or fringe benefits to employees. Contractor shall be solely responsible for all such obligations for its employees. Contractor shall also ensure that any Subcontractor shall comply with the foregoing obligations for its employees. The City shall have no duty to pay or withhold such obligations.

3.8 Records and Audits (06/19)

3.8.1 Records Retention. (06/19) Contractor shall maintain current financial records in accordance with Generally Accepted Accounting Principles (GAAP). Contractor agrees to maintain and retain all financial records, supporting documents, statistical records and all other records pertinent to this Contract during the term of this Contract and for a minimum of six (6) years after the expiration or termination date of this Contract or until the resolution of all audit questions or claims, whichever is longer.

3.8.2 City Audits. (06/19) The City, either directly or through a designated representative, may conduct financial and performance audits of the billings and Products or Services at any time in the course of the Contract and during the records retention period listed above.

Audits shall be conducted in accordance with generally accepted auditing standards as promulgated in Government Auditing Standards by the Comptroller General of the United States Government Accountability Office.

3.8.3 Access to Records. (06/19) The City may examine, audit and copy Contractor’s books, documents, papers, and records relating to this Contract at any time during the records retention period listed above upon reasonable notice. Copies of applicable records shall be made available upon request.

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

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

3.11 Personnel.

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

Name Title/Role % of Time Company

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

Any substitutions or replacements of Key Personnel require the written approval of the City. Contractor shall provide the City with the maximum possible period of notice of substitution or replacement of Key Personnel in order to allow for background screening, fingerprint checks, and other investigation as may be required in Section 3.14.3.

For any proposed substitute or replacement Key Personnel, Contractor shall provide the following information to the City: a detailed explanation of the circumstances necessitating the proposed substitution or replacement, a complete resume for the proposed substitute(s), and any additional information requested by the City.

Proposed substitutes or replacements should have qualifications comparable to or better than those of the persons being replaced. No change in Contract prices may occur as a result of substitution or replacement of Key Personnel.

3.12 Termination. (06/19) The following conditions apply to termination of this Contract. The City, on thirty (30) Calendar Days’ written notice to Contractor, may terminate this Contract for any reason in the City’s sole discretion. In the event of such termination, the City shall pay to Contractor the portion of the not-to-exceed price attributable to all Deliverables Accepted or Services performed and Accepted through the effective date of the termination. In the event of termination all of Contractor's Work Product to date shall be delivered to the City, and it will become and remain property of the City.

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

Contract #_________ Page 16 of 49

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

3.15 Force Majeure. (09/17) Either Party may terminate this Contract due to a Force Majeure event as set forth in Section 5.13, Force Majeure.

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

3.17 Non-Availability of Funds. (01/25) Every obligation of the City under this Contract is conditioned upon the availability of funds appropriated or allocated for the fulfillment of the City’s obligations. If funds are not allocated and available for the continuance of this Contract, the Contract may be terminated by the City at the end of the period for which the funds are available. No liability shall accrue to the City if this provision is exercised, and the City shall not be obligated or liable for any future payments as a result of termination under this paragraph.

3.18 Void Assignment. (09/17) In the event that Contractor assigns its obligations under this Contract to a third party in a manner other than as set forth in Section 5.8, Assignment, the City shall have the option to terminate this Contract without any notice or cure period or further obligation to Contractor or the assignee, and promptly receive a refund for fees paid for Products delivered and/or Services performed by the third party.

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

3.20 Severability. (09/17) Any section of this Contract which is held or declared void, invalid, illegal or otherwise not fully enforceable shall not affect any other provision of this Contract and the remainder of this Contract shall continue to be binding and of full force

Contract #_________ Page 17 of 49 and effect. This Contract shall be binding upon and inure to the benefit of the City and its successors and assigns.

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

3.22 EEO Certification. ( 09/25) Contractor shall be certified as an Equal Employment Opportunity Employer as prescribed by Chapter Public Contracting rule 5.33.076 and maintain its certification throughout the term of this Contract.

3.23 Non-Discrimination in Benefits. (m09/25) Throughout the term of this Contract, Contractor shall provide and maintain benefits to its employees with domestic partners equivalent to those provided to employees with spouses as prescribed by Public Contracting Rule 5.33.077.

3.24 Sustainability. ( 09/25) The City’s Sustainable City Principles, directs City Bureaus to pursue long-term social equity, environmental quality, and economic vitality through innovative and traditional mechanisms. . It is the policy of the City of Portland to encourage the use of Products or Services that help to minimize the human health and environmental impacts of City operations. Contractor is encouraged to incorporate environmentally preferable Products or Services into its work performance wherever possible. "Environmentally preferable" means Products or Services that have a lesser or reduced effect on human health and the environment when compared with competing products or services that serve the same purpose. This comparison may consider raw materials acquisition, production, manufacturing, packaging, distribution, reuse, operation, maintenance, or disposal of the Product or Service.

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

3.26 News Releases and Public Announcements. (09/17) Contractor shall not use the City seal or other representations of the City in its external advertising, marketing, website, or other promotional efforts, nor shall Contractor issue any news release or public

Contract #_________ Page 18 of 49 announcements pertaining to this Contract or the Project without the express written approval of the City. Such approval may be withheld in the City’s sole discretion.

Contractor shall not use the City seal without specific written permission from the City Auditor.

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

3.28 Survival. (09/17) All obligations relating to Confidential Information; indemnification;

publicity; representations and warranties; remedies; proprietary rights; limitation of liability; and obligations to make payments of amounts that become due under this Contract prior to termination or expiration shall survive the termination or expiration of this Contract and shall, to the extent applicable, remain binding and in full force and effect for the purposes of the ongoing business relationship by and between Contractor and the City.

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

SECTION 4 STATUTORY REQUIREMENTS, PUBLIC RECORDS AND CONFIDENTIALITY

4.1 Governing Law and Jurisdiction. (09/17) This Contract shall be construed according to the laws of the State of Oregon without reference to the conflict of laws’ provisions. Any litigation between the City and Contractor arising under this Contract or out of work performed under this Contract shall occur, if in the state courts, in the Multnomah County Circuit Court, and if in the federal courts, in the United States District Court for the District of Oregon.

4.2 Public Records Request. (09/17) Contractor acknowledges that the City of Portland is subject to the Oregon Public Records Act and Federal law. Third persons may claim that the Confidential Information Contractor submitted to the City hereunder may be, by virtue of its possession by the City, a public record and subject to disclosure pursuant to the Oregon Public Records Act. The City’s commitments to maintain certain information confidential under this Contract are all subject to the constraints of Oregon and federal laws. All information submitted by Contractor is public record and subject to disclosure

Contract #_________ Page 19 of 49 pursuant to the Oregon Public Records Act, except such portions for which Contractor requests and meets an exemption from disclosure consistent with federal or Oregon law.

Within the limits and discretion allowed by those laws, the City will maintain the confidentiality of information.

4.3 Public Records. (09/17) The City will retain one (1) copy of any public records for the express purposes of complying with State of Oregon and Portland City Code public records and archiving laws.

4.4 Confidentiality.

4.4.1 Contractor’s Confidential Information. (08/19) During the term of this Contract, Contractor may disclose to the City, certain Contractor Confidential Information pertaining to Contractor’s business. Contractor shall be required to mark Confidential Information CONFIDENTIAL with a restrictive legend or similar marking. If CONFIDENTIAL is not clearly marked, or the Contractor’s Confidential Information cannot be marked with a restrictive legend or similar marking or is disclosed either orally or by visual presentation, Contractor shall identify the Confidential Information as confidential at the time of disclosure or within a reasonable time thereafter. This Contract itself shall not be considered Confidential Information. Subject to Section 4.2, the City shall: (1) limit disclosure of Contractor Confidential Information to those directors, employees, contractors and agents of the City who need to know the Contractor Confidential Information in connection with the City Project and who have been informed of confidentiality obligations at least as strict as those contained in this Contract, and (2) exercise reasonable care to protect the confidentiality of the Contractor Confidential Information, at least to the same degree of care as the City employs with respect to protecting its own proprietary and confidential information.

4.4.2 City’s Confidential Information. (08/19) Contractor shall treat as confidential any City Confidential Information that has been made known or available to Contractor or that Contractor has received, learned, heard or observed; or to which Contractor has had access. Contractor shall use City Confidential Information exclusively for the City’s benefit in the performance of this Contract. Except as may be expressly authorized in writing by the City, in no event shall Contractor publish, use, discuss or cause or permit to be disclosed to any other person such City Confidential Information. Contractor shall

(1) limit disclosure of the City Confidential Information to those directors, officers, employees, subcontractors and agents of Contractor who need to know the City Confidential Information in connection with the City Project and who have agreed in writing to confidentiality obligations at least as strict as those contained in this Contract,

(2) exercise reasonable care to protect the confidentiality of the City Confidential Information, at least to the same degree of care as Contractor employs with respect to protecting its own proprietary and confidential information, and (3) return immediately to the City, upon its request, all materials containing City Confidential Information, in

Contract #_________ Page 20 of 49 whatever form, that are in Contractor's possession or custody or under its control.

Contractor is expressly restricted from and shall not use the Intellectual Property Rights of the City without the City’s prior written consent.

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

4.4.4 Equitable Relief. (12/18) Contractor acknowledges that unauthorized disclosure of City Confidential Information will result in…