BEH Approved West Linn Personal Services Agreement with Watermark.pdf

BEH PSA Template

V. 5.15.2025

PERSONAL SERVICES AGREEMENT

SEWER PUMP STATION IMPROVEMENTS - DESIGN

This Agreement is entered into between the City of West Linn, a municipal corporation of the State of Oregon (“City”), and CENTURY WEST ENGINEERING, a

CORPORATION of the state of OREGON (“Contractor”). This Agreement is made effective as of 12/17/2025 (the “Effective Date”). This Agreement may refer to the City and Contractor individually as “Party” or jointly as “Parties.”

RECITALS

WHEREAS, the City has a need for personal services that require specialized technical, creative, professional or communication skills or talents, unique and specialized knowledge, or the exercise of discretionary judgment, and for which the quality of the service depends on attributes that are unique to the service provider. In particular, the City is seeking SEWER PUMP STATION IMPROVEMENT DESIGN ENGINEERING

DESIGN SERVICES (the “Services”); and

WHEREAS, the City directly engaged Contractor to perform the Services, and Contractor responded by submitting and negotiated a Scope and Fee proposal for the Services dated

November 2025 (the “Proposal”); and

WHEREAS, the City duly selected Contractor based on Contractor’s capability, experience, approach, compensation requirements, references and other criteria to perform the Services, which was duly authorized pursuant to City’s public contracting rules, based on the information provided in Contractor’s Proposal; and

WHEREAS, the City desires to contract with Contractor to provide the Services.

AGREEMENT

NOW THEREFORE, in consideration of the foregoing Recitals incorporated by this reference and the mutual promises contained in this Agreement, City and Contractor agree as follows:

1. Term.

The initial term of this Agreement shall be from the Effective Date through June 15, 2026, unless amended or sooner terminated under the provisions of this Agreement.

Passage of the Agreement’s term shall not extinguish, prejudice, or limit either party’s right to enforce this Agreement with respect to any default or defect in performance that has not been corrected.

2. Contractor’s Services.

DRAFT

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Contractor shall perform the Services and provide the required deliverables in accordance with the terms and conditions of this Agreement. The Services, the deliverables required to be created thereunder, and the schedule for performance are set forth in Exhibit

A, Scope of Services. Any conflict between this Agreement and Contractor’s Proposal shall be resolved first in favor of this Agreement and pursuant to the order of precedence set forth herein. Contractor will use its best efforts and due diligence in its performance of the

Services and will provide such personnel, materials, supplies, and equipment as are necessary to successfully provide the Services. Contractor will perform the Services consistent with the skill and knowledge possessed by well-informed members of its industry, trade or profession and will apply that skill and knowledge with care and diligence to perform the Services under this Agreement in a professional manner and in accordance with highest standards prevalent in Contractor’s industry, trade or profession under similar conditions and circumstances (“Standard of Care”). All Contractor personnel and those of their subconsultants and subcontractors (collectively, “subcontractors”), if any, shall be properly trained and fully licensed to undertake any activities pursuant to this Agreement, and Contractor shall have all requisite permits, licenses and other authorizations necessary to provide the Services.

3. Contractor’s Identification.

Contractor shall provide the City Contractor’s employer identification number, as designated by the Internal Revenue Service, or, if the Internal Revenue Service has designated no employer identification number, Contractor’s Social Security number.

4. Compensation.

The City agrees to pay Contractor a sum not to exceed $99,842.00 for satisfactory completion of all Services. Upon satisfactory completion by Contractor and City’s acceptance of any tasks, milestones or other deliverables described in Exhibit A, City agrees to pay Contractor at the times and in the amount(s) set forth in this Agreement and in accordance with Exhibit B, Fee Determination Summary Sheet.

Contractor shall submit monthly requests for payment to the City for Services performed under this Agreement, and the invoices shall describe the Services performed, by whom they were performed, the number of hours worked, and itemize and explain all expenses for which reimbursement is being claimed. All expenses must be preapproved in writing by the City. Contractor shall choose the most economical form of transportation, and surface transportation mileage will be reimbursed for only one vehicle per two

Contractor personnel at the current in-effect IRS rate. Meals and incidental expenses will be paid consistent with the current in-effect U.S. General Services Administration (GSA) per diem rate, and hotels and parking will be paid at actual amounts, not to exceed the GSA

V. 5.15.2025 daily rate. No reimbursement will be made for any alcohol purchases, personal entertainment, or parking or traffic citations.

The City shall make payments for undisputed Services in a timely manner, within

Thirty (30) days of receipt of a complete and acceptable request for payment. Requests for payment received from the Contractor pursuant to this Agreement will be reviewed and approved by the City prior to payment.

The City shall not pay compensation for any portion of the Services not performed.

Payment shall not be considered acceptance or approval of any Services or waiver of any design defects therein. The compensation contemplated in this Section shall constitute full and complete payment for said Services.

Contractor must promptly pay all sums due to subcontractors for services and reimbursable expenses after receiving payment for those services from City.

5. Project Managers and Notice.

The Parties designate the following individuals as their Project Managers, who are designated to send and receive any notices required under this Agreement.

City’s Project Manager Contractor’s Project Manager

Clark Ide PE, Assistant City Engineer Joseph Jenkins, PE, Sr. Project Manager

22500 Salamo Rd. 5500 Meadows Road, Suite 250

West Linn, OR 970698 Lake Oswego, OR 97035 e: Cide@westlinnoregon.gov e: jjenkins@centurywest.com p: 503-722-3437 p: 360-608-9293

Each Party shall give the other written notice of any intended change of their Project

Manager. Any change to Contractor’s Project Manager must be approved by the City, such approval not to be unreasonably withheld.

Key Persons. The Parties agree that the City relied on the special qualifications of

Key Persons as a material inducement to enter into this Agreement. For purpose of this

Agreement, “Key Person” means the persons identified in as Contractor’s Project

Manager of this Agreement. The City is engaging Contractor due to the expertise, experience, judgment, and personal attention of Key Persons under this Agreement. Neither

Contractor nor any Key Person shall delegate performance of the duties and obligations of such Key Person under this Agreement to any other employee, agent or subcontractor of

Contractor unless the City provides prior written consent to such delegation. Contractor shall not reassign or transfer a Key Person to other duties or positions so that the Key

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Person is no longer available to provide the City with that Key Person’s services unless the

City provides prior written consent to the reassignment or transfer, or the reassignment or transfer is required based on the termination of employment, illness, death, disability or other similar cause.

Unless otherwise stated in the Agreement, all notices shall be made in writing and may be given by email (read receipt requested)]. Mailed notices shall be deemed given upon deposit in the United States mail, postage prepaid. In all other instances, notices shall be deemed given at the time of actual delivery.

6. Project Information.

Contractor agrees to promptly share all information related to the Services with the

City and to fully cooperate with all corporations, firms, contractors, governmental entities, and persons involved in or associated with the Services.

7. Duty to Inform.

Contractor shall give prompt written notice to the City’s Project Manager if, at any time during the performance of this Agreement, Contractor becomes aware of actual or potential problems, faults or defects in the Services, any nonconformity with the

Agreement, or with any federal, state, or local law, rule, regulation, decree, or other mandate, or if Contractor has any objection to any decision or order made by the City. Any delay or failure on the part of the City to provide a written response to Contractor shall constitute neither agreement with nor acquiescence to Contractor’s statement or claim, and shall not constitute a waiver of any of the City’s rights.

8. Time is of the Essence.

Time is of the essence as to the performance of the Services under this Agreement.

Contractor’s failure to adhere to the work schedule in Exhibit A is sufficient grounds for the City to terminate this Agreement for cause. If Contractor anticipates any delay that may prevent timely performance of Contractor’s obligations under this Agreement, 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. Contractor shall be liable for any loss, expense, or damage resulting from delay in the performance of the Services, which are due to any cause, except to the extent that those delays are caused by City fault or result from a Force

Majeure. In the event of delay, the City may obtain substitute services from another source and bill all additional costs directly to Contractor.

9. Contractor is Independent Contractor.

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Contractor is an independent contractor of the City for all purposes and shall be entitled to no compensation other than the compensation expressly provided by this

Agreement. 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 Agreement under

Contractor’s sole control. Contractor hereby expressly acknowledges and agrees that as an independent contractor, Contractor is not entitled to indemnification by the City or the provision of a defense by the City under the terms of ORS 30.285. This acknowledgment by Contractor shall not affect Contractor’s independent ability (or the ability of

Contractor’s insurer) to assert that the monetary limitations found at ORS 30.272, the immunities listed at ORS 30.265 or other limitations affecting the assertion of any claim under the terms of the Oregon Tort Claims Act (ORS 30.260 to ORS 30.300).

10. Contractor Representations and Warranties.

Contractor represents and warrants to the City that:

i. Contractor has the power, authority, ability, skills, and capacity to enter into and perform this Agreement, and when executed and delivered this Agreement shall be a valid and binding obligation of Contractor enforceable in accordance with its terms.

ii. Contractor is validly organized and exists in good standing under the laws of the State of Oregon, and Contractor is duly qualified, registered or licensed to do business in good standing in the State of Oregon.

iii. The execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby have been duly authorized by all necessary action and do not and will not (a) require any further consent or approval of the board of directors or any shareholders of the Contractor or any other person which has not been obtained or (b) result in a breach or default under the certificate of incorporation or by-laws of the Contractor or any indenture or loan or credit agreement or other material agreement or instrument to which the Contractor is a party or by which the Contractor’s properties and assets may be bound or affected. All such consents and approvals are in full force and effect.

iv. Contractor is engaged as an independent contractor and will be responsible for any federal, state or local taxes applicable to any payments made under this Agreement.

v. Contractor is not eligible for any federal social security, unemployment insurance, pension, PERS or workers’ compensation benefits from compensation or payments paid to Contractor under this Agreement.

vi. Contractor is not an employee of the City, any special district, local government, the federal government or the State of Oregon.

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vii. Contractor has complied and will continue to comply with all applicable federal, state, and local laws and regulations applicable to the performance of Contractor’s obligations under this Agreement. Contractor warrants it is currently in compliance with all tax laws.

viii. Contractor warrants that as of the Effective Date there are no suits, actions, other proceedings, or reasonable anticipation thereof, in any judicial or quasi-judicial forum that will or may adversely affect Contractor’s ability to fulfill its obligations under this Agreement. Contractor further warrants that it will immediately notify the City in writing if, during the Term of this Agreement, Contractor becomes aware of, or has reasonable anticipation of, any lawsuits, actions, or proceedings in any judicial or quasi-judicial forum that involves Contractor or any Subcontractor and that will or may adversely affect Contractor’s ability to fulfill its obligations under this Agreement.

ix. Contractor, and Contractor’s employees and subcontractors, shall be qualified, professionally competent and duly licensed to perform the work and Services at all times during the term of this Agreement.

x. Contractor has the skill and knowledge possessed by well-informed members of its industry, trade or profession and will apply that skill and knowledge with care and diligence to perform the Services under this Agreement in a professional manner and in accordance with standards prevalent in Contractor’s industry, trade or profession under similar conditions and circumstances.

xi. [Contractor has inspected, or will inspect, the Project site and all of the surrounding locations to the extent necessary to perform the Services.]

xii. Contractor has read, understands and agrees to be bound by each of the terms and conditions of this Agreement.

xiii. Contractor prepared its Proposal for these Services independently from all other proposers, and without collusion, fraud or other dishonesty. Contractor warrants it has no present interest and shall not acquire any interest that would conflict in any manner with its duties and obligations under this Agreement.

xiv. Any Goods/Items/Equipment/Components/Hardware/Software/Intellectual

Property Rights, etc. delivered to or granted to the City under this Agreement, and

Contractor’s Services rendered in the performance of Contractor’s obligations under this

Agreement, are provided to the City free and clear of any and all restrictions on or conditions of use, transfer, modification, or assignment, and are free and clear of any and all liens, claims, mortgages, security interests, liabilities, charges, and encumbrances of any kind.

xv. Upon the City’s request, Contractor shall provide the City with evidence reasonably satisfactory to the City confirming the foregoing representations and warranties. The representations and warranties set forth in this section are in addition to, and not in lieu of, any other representations and warranties that Contractor provides.

11. Indemnity.

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i. Contractor shall indemnify, defend and hold harmless the City, its officers, elected and appointed officials, agents, and employees, from all claims, demands, suits, and actions for all losses, damages, liabilities, costs and expenses (including all attorneys’ fees and costs), resulting from or arising out of the actions, errors, or omissions of

Contractor or its officers, employees, subcontractors, or agents under this Agreement.

ii. Infringement Liability. Contractor shall indemnify, defend, and hold harmless the City, its directors, officers, employees, and agents from and against any and all claims, demands, suits, and actions for any damages, liabilities, losses, costs, and expenses (including reasonable attorneys’ fees, whether or not at trial and/or on appeal), arising out of or in connection with any actual or alleged misappropriation, violation, or infringement of any proprietary right, whether arising from copyright, patent, trademark, trade secret or any other intellectual property right of any person whosoever. The City agrees to notify Contractor of the claim and gives Contractor sole control of the defense of the claim and negotiations for its settlement or compromise.

iii. Tax Liability. Contractor shall indemnify, defend, and hold harmless the City against any taxes, premiums, assessments, and other liabilities (including penalties and interest) that the City may be required to pay arising from Services or deliverables provided by Contractor under this Agreement. The City, as a municipal corporation of the State of

Oregon, is a tax-exempt unit of local government under the laws of the State of Oregon and is not liable for any taxes.

iv. The obligations of the indemnifications extended by Contractor to the City shall survive the termination or expiration of this Agreement.

12. Insurance.

Contractor and its subcontractors shall provide the following insurance coverages against any claims that may arise from or relate to the performance of the Services.

Contractor and its subcontractors must maintain that insurance until all their obligations have been discharged, including any warranty periods under this Agreement. The City in no way warrants that the limits stated in this section are sufficient to protect the Contractor from the liabilities that might arise out of the performance of the work under this

Agreement by Contractor, its agents, representatives, employees, subcontractors, and

Contractor may purchase such additional insurance as they determine necessary.

i. Commercial General Liability Insurance.

a. The policy must be in an occurrence form and include bodily injury, property damage, broad form contractual liability coverage in the following amounts:

General Aggregate $2,000,000

Products-Completed Operations Aggregate $2,000,000

Personal and Advertising Injury $2,000,000

Each Occurrence $2,000,000

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b. The policy shall be endorsed to name the City of West Linn and its elected and appointed officials, officers, agents, and employees as an additional insured with respect to liability for bodily injury, property damage, and personal and advertising injury with respect to premises, ongoing operations, products and completed operations, and liability assumed under an insured contract arising out of the activities performed by, or on behalf of, the

Contractor related to this Agreement.

c. The endorsement shall be indicated on the Certificate of Insurance, and there shall be no endorsement or modification which limits the scope of coverage or the policy limits available to the City as an additional insured.

d. Contractor’s insurance coverage must be primary insurance and non-contributory with respect to any insurance or self-insurance carried by the

City.

ii. Automobile Insurance.

a. The policy shall cover bodily injury and property damage coverage for any owned, hired, and non-owned vehicles used in the performance of this

Agreement. Automobile Liability coverage shall be written in an amount not less than $2,000,000 combined single limit.

b. The policy shall be endorsed to include the City, its elected and appointed officials, officers, agents and employees as an additional insured with respect to liability arising out of the activities performed by, or on behalf of, Contractor relating to this Agreement.

c. The City shall be an additional insured to the full limits of liability purchased by the Contractor.

iii. Workers' Compensation Coverage. Contractor certifies that it has qualified for

State of Oregon Workers’ Compensation coverage for all Contractor’s employees who are subject to Oregon's Workers’ Compensation statute, either as a carrier-insured employer as provided by ORS 656.407 or as a self-insured employer. Contractor shall provide to the

City within ten (10) days after contract award and prior to commencing Services, a certificate of insurance evidencing coverage of all subject workers under Oregon's

Workers’ Compensation statutes insured by an insurance company satisfactory to the City, if any. The certificate and policy shall indicate that the policy shall not be terminated by the insurance carrier without thirty (30) days’ advance written notice to the City. A copy of the certificate of self-insurance issued by the State shall be provided to the City if

Contractor is self-insured. To the extent permitted by law, a waiver of subrogation in favor of the City shall be included in the policy.

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iv. Professional Liability (Errors and Omissions Liability). Contractor shall provide the City with evidence of professional errors and omissions liability insurance covering any damages caused by negligent acts, errors, or omissions related to the professional services and performance of duties and responsibilities under this Agreement, in an amount not less than $2,000,000 combined single limit per occurrence. Contractor may opt to provide a claims-made policy with a combined single limit per claim of not less than

$2,000,000; but in doing so, Contractor warrants that any retroactive date under the policy precedes the effective date of this Agreement and that either continuous coverage will be maintained, or an extended reporting period will be exercised for a period of three (3) years beginning at the time work under this Agreement is completed. Where any subcontractor provides professional services related to this Agreement, they must provide equivalent coverage.

v. Certificates. Contractor shall furnish the City with certificates evidencing the date, amount, and type of insurance required by this Agreement (ACCORD form or equivalent approved by the City). The certificates for each insurance policy are to be signed by a person authorized by that insurer to bind coverage on its behalf. All policies will provide for not less than thirty (30) days’ written notice to the City before they may be canceled. Such notice will be mailed and emailed to West Linn Support Services

Supervisor Morgan Lovell at 22500 Salamo Rd. West Linn, OR 97068 or

Mlovell@westlinnoregon.gov. All certificates and any required endorsements are to be received and approved by the City before the work commences. Each insurance policy required by this Agreement must be in effect at or prior to the commencement of the work under this Agreement and remain in effect for the duration of the project or extended reporting period, as required. Failure to maintain the insurance policies as required by this

Agreement or to provide evidence of renewal is a material breach of this Agreement.

vi. Primary Coverage. The coverage provided by insurance required under this

Agreement shall be primary and noncontributory, and any other insurance carried by the

City shall be excess.

vii. Subcontractors. Contractor shall require the same insurance requirements from its subcontractors. Contractor’s certificates shall include all subcontractors as additional insureds under its policies -OR- Contractor shall be responsible for ensuring and verifying that all subcontractors have valid and collectible insurance. At any time throughout the term of the Agreement, the City reserves the right to require proof from Contractor that its subcontractors have insurance coverage. All subcontractors providing services included under this Agreement’s Scope of Services are subject to the insurance coverages identified above and must include the City as an additional insured. In certain circumstances, Contractor may, on behalf of its subcontractors, waive a specific type of coverage or limit mailto:Mlovell@westlinnoregon.gov

V. 5.15.2025 of liability where appropriate to the type of work being performed under the subcontract.

Contractor assumes liability for all subcontractors with respect to this Agreement.

viii. Acceptability of Insurers. Insurance is to be placed with insurers duly licensed or authorized to do business in the State of Oregon and with an “A.M. Best” rating of not less than A- VI. The City in no way warrants that the required minimum insurer rating is sufficient to protect Contractor from potential insurer insolvency.

ix. [Umbrella Insurance/Employee Liability/Other Coverages]

Umbrella Insurance. Contractor shall maintain umbrella coverage providing excess limits over the primary policies required by this Agreement in an amount not less than five million dollars ($5,000,000.00). The policy shall be endorsed to name the City and its elected and appointed officials, officers, agents, and employees as additional insured.

13. Work Product.

All work produced by Contractor is the exclusive property of the City. “Work

Product” includes but is not limited to, technical drawings, prints, blueprints, schematics, research, reports, computer programs, manuals, drawings, plans, recordings, photographs, artwork and any data or information in any form. Contractor and the City intend that such

Work Product shall be deemed “work made for hire” of which the City shall be deemed the author. If for any reason, a Work Product is deemed not to be a “work made for hire,” upon payment for the Services, Contractor irrevocably assigns and transfers to the City all right, title and interest in such Work Product, whether arising from copyright, patent, trademark, trade secret, or any other state or federal intellectual property law or doctrine. Contractor shall obtain such interests and execute all documents necessary to fully vest such rights in the City. Contractor waives all rights relating to Work Product, including any rights arising under 17 USC § 106A, or any other rights of authorship, identification or approval, restriction or limitation on use or subsequent modifications.

Notwithstanding the above, all pre-existing trademarks, service marks, patents, copyrights, trade secrets, and other proprietary rights of Contractor are and will remain the exclusive property of Contractor. Contractor hereby grants to the City a non-exclusive, perpetual, irrevocable license, with the right to sublicense, to disclose, copy, distribute, display, perform, prepare derivative works of and otherwise exploit any pre-existing intellectual property rights incorporated into the Work Product(s).

14. Public Records and Confidentiality.

i. Public Records Requests. Contractor acknowledges that the City is subject to the

Oregon Public Records Act and federal law. Third persons may claim that the Contractor

Confidential Information (as defined below) that Contractor submitted to the City

V. 5.15.2025 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 confidentially under this Agreement are all subject to the constraints of Oregon and federal laws. All information submitted by Contractor to the

City is a public record and subject to disclosure 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, in accordance with the process set forth in Section 14.iii. Within the limits and discretion allowed by those laws, the City will make a good faith effort to maintain the confidentiality of information.

ii.Public Records Retention. The City will retain one (1) copy of any public records for the express purposes of complying with State of Oregon public records and archiving laws.

iii.Confidentiality.

a. Contractor’s Confidential Information. During the term of this Agreement, Contractor may disclose to the City certain Contractor confidential information pertaining to Contractor’s business (“Contractor Confidential

Information”). Contractor shall be required to mark Contractor Confidential

Information CONFIDENTIAL with a restrictive legend or similar marking, together with a written statement describing the material which is requested to remain protected from disclosure and the justification for such request under Oregon public records laws. If Contractor Confidential Information is not clearly marked, or the Contractor 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 Contractor

Confidential Information as confidential at the time of disclosure or within a reasonable time thereafter. This Agreement itself shall not be considered

Contractor Confidential Information. Contractor Confidential Information does not include information that (1) is or becomes (other than by disclosure by the City) publicly known; (2) is furnished by Contractor to others without restrictions similar to those imposed by this Agreement; (3) is rightfully in the City’s possession without the obligation of nondisclosure prior to the time of its disclosure under this Agreement; (4) is obtained from a source other than Contractor without the obligation of confidentiality, (5) is disclosed with the written consent of Contractor, or; (6) is independently developed by employees or agents of the City who can be shown to have had no access to the Contractor Confidential Information. Subject to subsection (i) and (ii), the City shall: (1) limit disclosure of Contractor Confidential Information to those directors, elected and appointed officials, employees, contractors and

V. 5.15.2025 agents of the City who need to know the Contractor Confidential Information in connection with the Services and who have been informed of confidentiality obligations at least as strict as those contained in this

Agreement, 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.

b. City’s Confidential Information. Any and all information that the City provides to Contractor or its employees or agents in the performance of this

Agreement that the City designates as confidential (either on the document itself or through related correspondence), as well as all reports and other documents and materials that result from Contractor’s use of such information and any other Work Product that the City designates as confidential, is deemed to be confidential information of the City (“City

Confidential Information”). City Confidential Information does not include information that (1) is or becomes (other than by disclosure by Contractor) publicly known; (2) is furnished by the City to others without restrictions similar to those imposed by this Agreement; (3) is rightfully in Contractor’s possession without the obligation of nondisclosure prior to the time of its disclosure under this Agreement; (4) is obtained from a source other than the

City without the obligation of confidentiality, (5) is disclosed with the written consent of City, or; (6) is independently developed by employees or agents of Contractor who can be shown to have had no access to the Confidential

Information.

c. 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 Agreement. 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 Services and who have agreed in writing to confidentiality obligations at least as strict as those contained in this Agreement, (2) exercise reasonable care to protect the confidentiality of the City Confidential Information, at least to the same

V. 5.15.2025 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 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.

d. Retroactivity. This Section shall apply to all City Confidential Information previously received, learned, observed, known by or made available to

Contractor and related to this Agreement.

e. Survival. Contractor’s confidentiality obligations under this Agreement shall survive termination or expiration of this Agreement.

f. Equitable Relief. Contractor acknowledges that unauthorized disclosure of

City Confidential Information will result in irreparable harm to the City. The

Parties agree that, notwithstanding any other section of this Agreement, in the event of a breach or a threatened breach of the Agreement’s terms related to Confidential Information or intellectual property rights, the non-breaching

Party shall be entitled to seek equitable relief to protect its interests, including but not limited to injunctive relief. Nothing stated herein shall be construed to limit any other remedies available to the Parties.

g. Discovery of Documents. In the event a court of competent jurisdiction orders the release of Confidential Information submitted by one Party, the other Party will notify the Party whose Confidential Information is being requested to be disclosed of the request. The Party receiving the request shall allow the other Party to participate in the response at its own expense. Each

Party will comply with any effective court order.

15. Changes in Work.

Any changes to the provisions of this Agreement shall be in the form of an amendment. No provision of this Agreement may be amended unless such amendment is approved and executed in writing by authorized representatives of the Parties. If the requirements for amendment of this Agreement 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 Agreement unilaterally, such as extending option years and increasing

V. 5.15.2025 compensation. An administrative change means a written change that does not affect the substantive rights of the Parties.

The City and Contractor can agree to make changes at any time to the Statement of

Work due to changed or extra work in the form of a change order. Only the Public Works

Director or City Project Manager may authorize a change order. Failure of Contractor to secure written authorization for a change order shall constitute a waiver of all right to adjustment in the contract price or contract time due to such unauthorized change order, and Contractor thereafter shall be entitled to no compensation whatsoever for the performance of such work. If the change order would change the Agreement’s not-to-exceed amount, the change order must be in the form of an amendment.

16. Errors.

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.

17. Disputes.

Contractor shall cooperate with the City to ensure that all claims and controversies which arise during this Agreement will be resolved as expeditiously as possible in accordance with the following resolution procedure:

i. Any dispute between the City and Contractor shall attempt to be resolved by their respective Project Manager or designee.

ii. If the Project Managers are unable to resolve the dispute within three (3) days of notice of dispute is given by a Party, the dispute shall be referred to the Project Managers’ superiors.

iii. If the dispute cannot be resolved pursuant to subsections (i) or (ii), the parties agree to mediate in a good faith prior to initiating litigation pursuant to Section 23.

18. Early Termination of Agreement.

i. The City may terminate this Agreement for convenience at any time for any reason deemed appropriate in its sole discretion. Termination is effective immediately upon notice of termination given by the City.

ii. Either Party may terminate this Agreement in the event of a material breach by the other Party that is not cured. Unless otherwise set forth in the Agreement, before termination is permitted, the Party seeking termination shall give the other Party written notice via certified mail of the breach, its intent to terminate, and thirty (30) calendar days to cure the breach. If the breach is not cured within thirty 30 days, the Party seeking

V. 5.15.2025 termination may terminate immediately by giving written notice by certified mail that the

Agreement is terminated. If there is an immediate risk of harm to life or property, the City may terminate the Agreement immediately and without regard to the 30-day notice provision. Moreover, the City may immediately terminate this Agreement 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.

iii. The City and Contractor agree that the City has entered into this Agreement due to the specific personal skills of Contractor. Accordingly, the City may immediately terminate this Agreement upon the occurrence of one or more of the following: (a)

Contractor commences a voluntary case under Title 11 of the United States Code or the corresponding provisions of any successor laws; (b) anyone commences an involuntary case against Contractor under Title 11 of the United States Code or the corresponding provisions of any successor laws and either (i) the case is not dismissed by midnight at the end of the 60th day after commencement or (ii) the court before which the case is pending issues an order for relief or similar order approving the case; (c) a court of competent jurisdiction appoints, or the Contractor makes an assignment of all or substantially all of its assets to, a custodian (as that term is defined in Title 11 of the United States Code or the corresponding provisions of any successor laws) for Contractor or all or substantially all of its assets; or (d) Contractor fails generally to pay its debts as they become due (unless those debts are subject to a good-faith dispute as to liability or amount) or acknowledges in writing that it is unable to do so.

19. Remedies and Payment on Early Termination.

i. If the City terminates pursuant to Section 18(i), the City shall pay Contractor for

Services performed in accordance with the Agreement prior to the termination date. No other costs or loss of anticipated profits shall be paid.

ii. If the City terminates pursuant to Section18(ii), the City is entitled all remedies available at law or equity. In addition, Contractor shall pay the City all damages, costs, and sums incurred by the City as a result of the breach.

iii. If the Contractor justifiably terminates the Agreement pursuant to 18(ii), Contractor’s only remedy is payment for Services performed and accepted by the City prior to the effective date of the termination. No other costs or loss of anticipated profits shall be paid.

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iv. If the City’s termination under Section 18(ii) was wrongful, the termination shall be automatically converted to one for convenience, and Contractor shall be paid as if the

Agreement was terminated under Section 18(i).

v. In the event of early termination, Contractor’s Work Product before the date of termination becomes property of the City.

20. Compliance with Applicable Law.

Contractor shall comply with all federal, state and local laws, regulations, executive orders and ordinances applicable to this Agreement. Without limiting the generality of the foregoing, Contractor expressly agrees to comply with the following laws, regulations and executive orders to the extent they are applicable to the Agreement: (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 the

Agreement and required by law to be so incorporated.

Certain Oregon laws apply to all public contracts in Oregon. The City’s performance under the Agreement is conditioned upon Contractor’s compliance with the applicable provisions in Attachment 1 – OR Statutorily Required Contract Provisions, which are incorporated herein by this reference.

21. Records and Audits.

i. Records Retention. Contractor shall maintain current financial records in accordance with Generally Accepted Accounting Principles (GAAP). Contractor agrees to maintain and retain and retain all financial records, supporting documents, statistical records and all other records pertinent to this Agreement during the term of this Agreement and for a minimum of six (6) years after the expiration or termination date of this

Agreement, or for a minimum of six (6) years after all other pending matters in connection with this Agreement are closed, whichever is longer.

ii. City Audits. The City, either directly or through a designated representative, may conduct financial and performance audits of the billings and Services at any time in the course of the Agreement and during the records retention period listed above. Audits shall

V. 5.15.2025 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.

iii. Access to Records. The City may examine, audit and copy Contractor’s books, documents, papers, and records relating to this Agreement at any time during the records retention period listed above upon reasonable notice. Copies of applicable records shall be made available upon request. Access to said documents shall be granted within seven (7) days written notice, or such other earlier time as is reasonable under the circumstances.

22. Law of Oregon.

This Agreement is governed by the laws of the State of Oregon without reference to its “conflict of laws” provisions that might otherwise require the application of the law of any other jurisdiction. Any action or suits involving any question arising under this

Agreement shall be brough in the appropriate court of Clackamas County, Oregon.

23. Mediation, Trial By Jury, Attorneys’ Fees.

i. Should any dispute arise between the Parties to this Agreement that cannot be resolved by Section 17, it is agreed that such dispute will be submitted to a mediator prior to any litigation, and the Parties hereby expressly agree that no claim or dispute arising under the terms of this Agreement shall be resolved other than first through mediation and only in the event said mediation efforts fail, through litigation. By mutual agreement, the

Parties may waive mediation and proceed with litigation. The waiver shall be in writing and signed by an authorized representative of each Party.

ii. The Parties shall exercise good faith efforts to select a mediator who shall be compensated equally by both Parties. Mediation will be conducted in West Linn, Oregon, unless both Parties agree in writing otherwise. Both Parties agree to exercise good faith efforts to resolve disputes covered by this section through this mediation process. If a Party requests mediation and the other party fails to respond within ten (10) days, or if the Parties fail to agree on a mediator within ten (10) days, a mediator shall be appointed by the presiding judge of the Clackamas County Circuit Court upon the request of either Party.

iii. Any litigation arising under or as a result of this Agreement shall be tried to the court without a jury.

iv. In any mediation or litigation arising under this Agreement, each Party shall bear its own fees and costs, including attorneys’ fees.

v. Any legal proceeding of any nature whatsoever brought by Contractor against the

City that asserts a breach of contract, a declaratory judgment proceeding, or any other legal or equitable claim related to, or arising from, the Services performed under this Agreement

V. 5.15.2025 shall be brought within one (1) year of the date that final payment is made to Contractor, regardless of whether Contractor is aware of the legal claim it might have during that time.

If the legal proceeding is not brough within that one (1) year period, Contractor expressly waives any and all claims that are in any way related to the Agreement. For purposes of this subsection, final payment is considered to be made when the City sends a check to

Contractor that contains the undisputed balance that is due for all Services performed prior to the expiration or termination of the Agreement. The subsequent payment of minor amounts to Contractor that constitute less than 2% of the total cost of Services performed, or the payment of claims made pursuant to section 17, shall not affect the date when final payment is considered to have been made.

24. Conflict of Interest.

Contractor hereby certifies that it is not a City official/employee or a business with which a City official/employee is associated, and that to the best of its knowledge, Contractor, its employee(s), officer(s) or its director(s) is not a City official/employee or a relative of any City official/employee who: (1) has responsibility in making decisions or ability to influence decision-making on the Agreement or project to which this Agreement pertains; (2) has or will participate in evaluation or management of the Agreement; or (3) has or will have financial benefits in the Agreement. Contractor understands that should it elect to employ any former City official/employee during the term of the Agreement, then that former City official/Contractor employee must comply with applicable government ethics and conflicts of interest provisions in ORS Chapter 244, including but not limited to

ORS 244.040(5) and ORS 244.047, and any provisions of the City’s Charter, Code, ordinances, or administrative rules.

25. Subcontractors.

The Contractor is solely and exclusively for the performance of the Services, notwithstanding any subcontracts that it enters into for the performance of the Services.

Contractor shall provide a list of all subcontractors with which Contractor intends to utilize in providing Services. This list shall include such information on their relevant qualifications as may be requested by the City. The City reserves the right to review and reject Contractor’s use of subcontractors where the City has a reasonable objection.

Contractor shall obtain the City’s written consent prior to entering into any subcontracts for any of the Services required by the Agreement.

26. Force Majeure.

A “Force Majeure Event” is an exceptional, unforeseeable and unavoidable occurrence beyond the reasonable control of the affected Party, such as, riots, epidemics, war, government regulations, labor disputes, fire, natural phenomena, or other

V. 5.15.2025 unforeseeable causes beyond such Party’s reasonable control. In the event that either Party is unable to perform any of its obligations under this Agreement due to a Force Majeure

Event not the fault of the affected Party, the Party who has been so affected immediately shall give notice to the other Party and shall do everything reasonably possible to resume performance. Upon receipt of such notice, the performance obligations affected by the

Force Majeure event shall immediately be suspended.

If the period of nonperformance exceeds fifteen (15) calendar days from the receipt of notice of the Force Majeure Event, the Party whose ability to perform has not been so affected may, by giving written notice, terminate this Agreement.

If the period of nonperformance due to a Force Majeure Event does not exceed fifteen (15) calendar days, such nonperformance shall automatically extend the time to complete the Services for a period equal to the duration of such events.