ATTACHMENT A - SAMPLE MASTER SERVICES AGREEMENT.pdf

MASTER SERVICES AGREEMENT

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Parties: This Agreement is made between the Sunrise Water Authority (“Sunrise” or “Owner”), a municipal corporation organized under Oregon Revised Statutes Chapter 450, and <Consultant Business Name> “Consultant”), a professional engineering services firm licensed and authorized to conduct business in the State of Oregon.

Period of Effect: This Agreement becomes effective on the date of final execution by both Parties (the "Effective Date") and shall remain in full force and effect for an initial term of three (3) years. Sunrise Water Authority reserves the right, at its sole discretion, to extend the term for up to two (2) years by providing written notice to the Consultant.

Notwithstanding the expiration or non-renewal of this Agreement, any Task Order executed prior to the Agreement's expiration date shall continue in full force and effect throughout the period of authorized work, including the delivery and acceptance of any final work products agreed by the Parties.

Scope of Services and Schedule: Attachment 1 – Request for Qualifications #2627-11-001 and Attachment 2 – Consultant Statement of Qualifications are hereby incorporated into this Agreement by reference. The Parties shall execute a series of Task Orders, mutually agreed (in writing) by the Parties and included by reference herein. Each Task Order shall outline a schedule of related tasks, including key project milestones and a list of project deliverables.

Compensation: (a) The Consultant shall perform this work on a time and material basis for a not-to-exceed amount mutually agreed (in writing) by the Parties.

The time and material rates shall not exceed those stated in Attachment 3 – Rate Schedule, which is hereby incorporated by reference.

(b) Beginning one (1) year after the Effective Date, and then every year thereafter, the Consultant may request an adjustment to the Rate Schedule. Sunrise will review and approve any such increase at its sole discretion. Any such request shall:

1. Be supported by documentation demonstrating that the requested adjustment is reasonable, such as changes in salaries, labor costs, or market conditions.

2. Take effect upon SWA’s written approval and apply to work performed on or after the date specified in such approval.

3. Not intend to be retroactive to prior years or to work already performed.

(c) For each Task Order, the Consultant shall prepare a fee estimate showing key persons, their hourly billing rates, and projected hours assigned to the major project tasks. All billing rates shall include any and all mark-ups of direct salary. Moreover, this fee estimate shall identify all related reimbursable expenses, including mileage, printing, equipment rental, and any other project related expenses, as approved by Sunrise.

Invoicing and Payment: (a) The Consultant must submit an invoice for payment of authorized work, detailing all labor hours, including the person’s name (and title) and the number of hours they worked on each task (or Task Order), along with all related and approved reimbursable expenses. Invoices may be submitted at any time but in no case more than once monthly (and not more frequently than 20 days between any two invoices).

(b) Sunrise shall make payment within thirty (30) calendar days of the receipt of any invoice for all approved work. Payment shall not be considered acceptance or approval of any work or waiver of any defects therein.

(c) Sunrise reserves the right to dispute any charges, including billing hours, expenses or other charges not approved by Sunrise. Sunrise may in turn ask for additional data and information to clarify or validate any charges. Moreover, payment for disputed charges will be retained (i.e. not paid) until the Parties mutually resolve the validity of such charges. When only a portion of an invoice is in dispute, Sunrise will retain only that portion until the dispute is resolved.

(d) The Consultant shall not be entitled to any fines, fees, or interest penalties for any late payment by Sunrise.

Amendments or Change Orders: No changes or amendments shall be made to this contract or any Task Order, including its Scope of Services, Schedule Compensation, or Schedule, without prior written authorization from Sunrise. Sunrise may, in turn, make such changes at any time, provided the parties agree that such change does not create any additional burden to the Consultant in terms of anticipated costs or loss in schedule (time). Otherwise, the parties must mutually agree, in writing, to the noted changes.

General Responsibilities: (a) Consultant acknowledges and agrees that Sunrise selected

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Consultant for this work because of the special qualifications of Consultant’s key personnel.

Consultant shall not reassign or transfer these key personnel to other duties or positions, such that these key personnel are no longer available to provide their expertise, experience, judgment, and personal attention in executing the Scope of Services, without first obtaining Sunrise’s prior written consent to such reassignment or transfer. In the event Consultant requests Sunrise to approve such a reassignment or transfer of these key personnel, Sunrise shall have the right to interview, review the qualifications of, and approve or disapprove the proposed replacement(s).

(b) Consultant shall also inform Sunrise of its Federal Internal Revenue Service Employer Identification Number.

(c) Consultant has the skill and knowledge possessed by well-informed members of its profession and will apply that skill and knowledge in performance of this Agreement in accordance with the usual and customary care exercised by members of the same profession.

(d) Unless otherwise specified in the Scope of Services or so otherwise approved by Sunrise, Consultant shall furnish and assume full responsibility for all materials, equipment, labor, and transportation, necessary for the furnishing, performance, testing and completion of the services required under this Agreement.

(e) Consultant shall promptly pay, as due, all of its obligations arising out of or in connection with the performance of this Agreement, including but not limited to payment to all person supplying Consultant labor, equipment, services, or materials in the execution of any related Services or Tasks. Consultant shall also defend, indemnify, and hold harmless Sunrise from and against any and all claims, costs, and/or losses whatsoever occurring or resulting from Consultant’s failure to meet said obligations.

(f) Consultant shall not permit any lien or claim to be filed or prosecuted against Sunrise on account of any labor or materials furnished.

(g) Consultant shall not at any time supervise, direct, control, or have authority over any construction work, nor shall Consultant have authority over or be responsible for the means, methods, techniques, sequences, or procedures of any such construction selected or used by any third-party contractor.

(h) Consultant must, throughout the duration of this Contract and any extensions, comply with all tax laws of this state and all applicable tax laws of any political subdivision of this state. Consultant (to the best of Consultant’s knowledge, after due inquiry), for a period of no fewer than six calendar years preceding the date of this Contract, faithfully has complied with:

(i) All tax laws of this state, including but not limited to ORS 305.620 and ORS chapters 316, 317, and 318;

and (ii) Any tax provisions imposed by a political subdivision of this state that applied to Consultant, to Consultant’s property, operations, receipts, or income, or to Consultant’s performance of or compensation for any work performed by Consultant.

(i) Consultant shall promptly, as due, make payments to any person, co-partnership, association, or corporation furnishing medical, surgical, and hospital care or other needed care and attention, incident to sickness or injury, to the employees of such Consultant, of all sums which the Consultant agrees to pay for such services and all moneys and sums which the Consultant collected or deducted from the wages of employees pursuant to any law, contract, or agreement for the purpose of providing or paying for such service.

Compliance with Applicable Laws: (a) Consultant shall comply with all federal, state and local laws, regulations, executive orders and ordinances applicable to this Agreement, Including (but not limited to): (i) Titles VI and VII of the Civil Rights Act of 1964, as amended; (ii) Sections 503 and 504 of the Rehabilitation Act of 1973, as amended; (iii) the Americans with Disabilities Act of 1990, as amended;

(iv) Executive Order 11246, as amended; (v) the Health Insurance Portability and Accountability Act of 1996; (vi) the Age Discrimination in Employment Act of 1967, as amended, and the Age Discrimination Act of 1975, as amended; (vii) the Vietnam Era Veterans’ Readjustment Assistance Act of 1974, as amended;

(viii) ORS Chapter 659, as amended; (ix) all regulations and administrative rules established pursuant to the foregoing laws; and (x) all other applicable requirements of federal, state and municipal civil rights and rehabilitation statutes, rules and regulations. These laws, regulations and executive orders are incorporated by reference herein to the extent that they are applicable to this Agreement and required by law to be so incorporated. Sunrise’s performance under this Agreement is conditioned upon Consultant's compliance with the provisions of

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ORS 279B.220, 279B.225, 279B.230, and 279B.235 which are incorporated by reference herein.

(b) Consultant verifies that they are an independent contractor for all purposes and is entitled to no compensation from Sunrise other than that provided by this contract. The Consultant further verifies that it is not an officer, employee or agent of Sunrise as those terms are used in ORS 30.265, nor are any of its officers, employees, or agents associated therein.

Moreover, the Consultant, its employees or officers shall not hold themselves out either explicitly or implicitly as officers, employees or agents of Sunrise for any purpose whatsoever, nor are they authorized to do so.

(c) Consultant and its subcontractors, if any, are subject to Oregon Workers' Compensation Law, which requires all employers that employ subject workers who work under this Agreement in the State of Oregon to comply with ORS 656.017 and provide the required workers' compensation coverage, unless such employers are exempt under ORS 656.126.

Consultant shall ensure that each of its subcontractors, if any, complies with these requirements.

Indemnification: (a) Consultant agrees to indemnify and hold harmless Sunrise, its officers, commissioners, and employees from and against all claims and actions, and all reasonable expenses incidental to the investigation and defense thereof, arising out of or based upon damages or injuries to persons and property, to the extent that the damages or injuries to persons and property are caused by the negligent acts, errors, or omissions of the Consultant, its subcontractors, or anyone over which the Consultant has a contractual relationship with, during or in connection with the performance of this Agreement.

(b) To the fullest extent permitted by law, Sunrise and Consultant waive against each other, and the other’s employees, officers, directors, members, agents, insurers, partners, and consultants, any and all claims for or entitlement to special, incidental, indirect, or consequential damages arising out of, resulting from, or in any way related to this Agreement or its related project(s).

Owner Furnished Documents: (a) Upon request by Consultant, Owner shall furnish to Consultant all applicable information and technical data in owner's possession or control which owner may lawfully release, including but not limited to, maps, surveys, drawings, soils or geotechnical reports, and any other information relating to the Services (or Task Orders) and requested by Consultant.

(b) The Consultant shall be entitled to reasonably rely upon the information provided by the owner or owner’s representatives, or from generally accepted sources without independent verification except to the extent such verification is expressly included in the scope of Services (or Task Orders).

(c) Notwithstanding the foregoing, Owner’s provision of such information shall in no way be deemed a representation or warranty as to the completeness of the information necessary for Consultant to complete its work under this Agreement.

Ownership of Work Products: (a) Sunrise shall be entitled to obtain, possess and own copies of any and all products of service which result from this contract, including any reports, memoranda, spreadsheets, computations, plans, correspondence or pertinent data and information gathered by or computed by Consultant prior to completion of the work pursuant to this Agreement or its termination herein, but excluding pre-existing intellectual property.

(b) Reuse of Consultant’s work products by Sunrise (or third-parties) for purposes outside this Agreement shall be without liability to Consultant, unless so agreed in writing by the Parties.

(c) Owner and Consultant may transmit, and shall accept, project-related correspondence, documents, text, data, drawings, information, and graphics, in electronic media or digital format, either directly, or through access to a secure Project website, in accordance with a mutually agreeable protocol.

Insurance: (a) During the term of this Agreement, Consultant shall purchase and maintain (at Consultant’s expense) the following coverage:

i. Commercial General Liability Insurance with a combined single limit of $2,000,000 for each occurrence related to property damage and bodily injury (including illness and death) with an annual aggregate of $2,000,000.

ii. Automobile Liability for all owned, hired, and non-owned vehicles with a combined single limit of $2,000,000 for each accident.

iii. Workers’ Compensation Insurance. The Consultant, its subcontractors, if any, and all employers providing work, labor, or materials under this Agreement that are subject to Oregon

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Workers' Compensation Law shall comply with ORS 656, which requires them to provide coverage that satisfies Oregon law for all their subject workers. All non-exempt employers shall provide Employer's Liability Insurance with coverage limits of $500,000 for each accident or illness for each employee.

iv. Professional Liability Insurance: covering errors and omissions or negligent acts in the amount of $1,000,000 per claim and $2,000,000 in annual aggregate.

(b) Consultant shall name Sunrise, its officers, representatives, agents, and employees, as additional insureds on its Commercial General Liability and Commercial Automobile policies, and other required policies as applicable, and furnish acceptable certificates of insurance within ten (10) days following award of this contract and prior to commencement of any related work. Consultant shall further indemnify Sunrise for any liability or damages that may incur due to Consultant’s failure to purchase or maintain any required insurance.

(c) Failure of Sunrise to demand proof of insurance or to identify a deficiency in coverage shall not be construed as a waiver of the Consultant’s obligation to maintain such insurance.

Opinions of Construction Costs: (a) Consultant may, during the course of its Services, prepare opinions of the cost of construction. Sunrise acknowledges that Consultant has no control over costs of labor, materials, competitive bidding environments and procedures, unknown field conditions, financial and/or market conditions or other factors affecting the cost of the construction and the operation of the facilities, the design of which is contemplated by this Agreement, all of which are and will unavoidably remain in a state of change.

(b) Sunrise therefore acknowledges that Consultant cannot and does not make any warranty, promise, or representation, either express or implied, that proposals, bids, project construction costs, or cost of operation or maintenance will not vary substantially from its cost estimates.

Termination: (a) Sunrise may, at any time and without cause have the right, in its sole discretion, to terminate this contract, subject to 10 days written notice to Consultant. The Consultant shall, in turn, be compensated for all services satisfactorily rendered and expenses incurred to the date of termination, less any amount of damage, if any, sustained by Sunrise due to breach of contract by Consultant.

(b) Either party may terminate for cause for breach of contract upon 10 days written notice to the other party specifying the breach. Damages for breach of contract shall be those allowed by Oregon law, reasonable and necessary attorney fees, and other costs of litigation at trial and upon appeal.

Disputes: (a) The Parties agree to negotiate any and all disputes arising from the Agreement among them in good faith for a period of up to 30 days following notice of dispute.

(b) If the Parties are not able to resolve such a dispute, either party may, in writing to the other party, request mediation. If the parties cannot agree on a mediator or the process of mediation within 30 calendar days after receipt of a written request for mediation, either party may seek any remedy available at law to resolve the dispute. All costs of mediation shall be borne equally by the parties.

(c) Other than requiring the parties to provide notice of requested mediation, nothing in this section shall be deemed to preclude Sunrise or Consultant from seeking any remedy available under the law.

Governing Law and Jurisdiction: The laws of the State of Oregon shall govern this contract. Any suit or action arising from this contract shall be commenced and prosecuted in the courts of Clackamas County, Oregon or the U.S. District Court for the District of Oregon, in Portland, Oregon, as applicable.

Attorney’s Fees: In case any suit or action is instituted to enforce the provisions of this Agreement, each party shall be responsible for their own attorney’s fees and expenses, including upon appeal and in the enforcement of any judgement.

Audit: (a) Consultant shall maintain records to assure conformance with the terms and conditions of this contract, and to assure adequate performance and accurate expenditures within the contract period.

Consultant agrees to permit Sunrise, the State of Oregon, the federal government, or their duly authorized representatives audit access to all records pertaining to this contract to assure the accurate expenditure of funds.

(b) The Consultant further agrees to maintain all books, records, accounts and reports required under this contract for a period of not less than three (3) years after the date of termination or expiration of

5 | P a g e this contract. Consultant also agrees to include in all of its subcontracts under this contract a provision to the effect that the subcontractor agrees that Sunrise, or any of its duly authorized representatives shall, until the expiration of three (3) years after final payment under the subcontract, have access to and the right to examine any directly pertinent books, documents, papers, and other records of the subcontractor.

Confidentiality: (a) Consultant acknowledges that it, and its employees, subconsultants, and agents, may in the course of performing work under this Agreement be exposed or acquire information that Sunrise desires or is required to maintain as confidential. Such confidential information may include papers, reports, manuals, drawings, email, software, digital files, and other records owned and possessed by Sunrise and its authorized representatives.

(b) Consultant, in turn, agrees to preserve and maintain that confidentiality and not to disclose, sell, transfer, or dispose of any such confidential information for any purpose or reason whatsoever, without written authorization from the Executive Director of Sunrise.

(c) Consultant further agrees to immediately notify Sunrise, in writing, of any unauthorized use or release of such confidential information and shall take all reasonable steps and procedures to mitigate the impacts of such unauthorized use or release.

Consultant shall be further responsible for all damages, fines, or corrective actions arising from a violation of the confidentiality provisions stated hereunder.

(d) The foregoing provisions shall not apply to the extent Consultant is required to disclose confidential information as required by applicable law, regulation, or legal process, provided that Consultant must promptly notify Sunrise, in writing, of such requirement or request, including a detailed description of the confidential information requested, so that Sunrise may seek a protective order or other appropriate remedy.

Severability: In the event any provision or portion of this Agreement is held to be unenforceable or invalid by any court of competent jurisdiction, the validity of the remaining terms and provisions shall not be affected to the extent that it did not materially affect the intent of the parties when they entered into the agreement.

Waiver: The failure of Sunrise to enforce any provision of this Agreement shall not constitute a waiver by Sunrise of that or any other provision.

Successors: The Parties are hereby bound and the successors, executors, administrators, and legal representatives of Sunrise or Consultant (and any party so agreed by proper assignment) are hereby bound to the other party to this Agreement and to the successors, executors, administrators, and legal representatives (and said assigns) of such other party, in respect of all covenants, agreements, and obligations of this Agreement.

Assignment: Neither Sunrise nor Consultant may assign, sublet, or transfer any rights under or interest (including, but without limitation, money that is due or may become due) in this Agreement without the written consent of the other party, except to the extent that any assignment, subletting, or transfer is mandated by law. Unless specifically stated to the contrary in any written consent to an assignment, no assignment will release or discharge the assignor from any duty or responsibility under this Agreement.

Third-Party Beneficiaries: Unless expressly provided otherwise, nothing in this Agreement shall be construed to create, impose, or give rise to any duty owed by Sunrise or Consultant to any Constructor, other third-party individual or entity, or to any surety for or employee of any of them. All duties and responsibilities undertaken pursuant to this Agreement will be for the sole and exclusive benefit of Owner and Consultant and not for the benefit of any other party.

Cooperative Authority: Pursuant to ORS 279A.215 and the rules of the Public Contracting Code, Contractor agrees that the terms, conditions, specifications, and pricing of this Contract may be extended to, and utilized by, other Oregon "contracting agencies" as defined in ORS 279A.010(1)(b) (each, a "Purchasing Contracting Agency" as defined in ORS 279A.200(1)(h)). The condition of such use by other contracting agencies is that any such contracting agency must make and pursue contact, negotiations, contractual agreements, delivery arrangements and all contractual remedies directly with the Contractor.

Sunrise accepts no responsibility for performance by either the Contractor or any such agency using this Agreement.

Subcontract: Consultant shall not subcontract any of its responsibilities under this contract without the written consent of Sunrise. If Sunrise approves of such subcontract, Consultant shall include in each subcontract any provisions necessary to make all of

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Consultant shall provide all necessary documents and instructions to its subcontractor to enable them to properly perform their work.

Integration: This Agreement together with any Task Order(s) are incorporated by reference into each other and supersede all prior written and oral discussions, representations, negotiations, and agreements on the subject matter of the Task Order.

In the event of a conflict between the terms of this Agreement and the terms of a Task Order, the terms of this Agreement shall govern.

By signing below, the Parties herein agree to the stated terms and conditions for service under this Agreement:

SAMPLE ONLY – DO NOT SIGN

(d) Unless otherwise specified in the Scope of Services or so otherwise approved by Sunrise, Consultant shall furnish and assume full responsibility for all materials, equipment, labor, and transportation, necessary for the furnishing, performance, te...