Exhibit B Sample Contract.pdf

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QBS-RFP 00002642 EXHIBIT B

SAMPLE DESIGN SERVICES CONTRACT

CITY OF PORTLAND

CONTRACT NUMBER ________

Owner Advisor, Construction Management and Inspection Services for

Alternative Delivery Capital Improvement Projects

This Design Services Contract (“Contract”) is entered into by and between the City of Portland ("City," or “Bureau”) and [INSERT CONSULTANT’S LEGAL NAME], (“Consultant”).

Effective Date and Term

This Contract shall commence on the Effective Date, [INSERT EFFECTIVE DATE] and shall continue in full force and effect until [INSERT END DATE] or such other date on the Contract is terminated or extended pursuant to the terms of this Contract (“Term”).

Consideration

(a) City agrees to pay Consultant a sum not to exceed [INSERT WRITTEN CONTRACT AMOUNT] Dollars ($[INSERT NUMERICAL VALUE]) to complete the work in accordance with the Statement of Work (SOW), attached hereto as Exhibit A.

(b) Payments shall be made in accordance with the Compensation section, attached hereto as Exhibit B.

CONSULTANT DATA AND CERTIFICATION

Name: [INSERT FULL LEGAL NAME] Address:

Business Designation (check one): Individual Sole

Proprietorship

Partnership

Corporation Limited Liability Co

(LLC)

Public Service

Corp. Government/Nonprofit

Payment information will be reported to the IRS under the name provided above. Information must be provided prior to contract approval.

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TERMS AND CONDITIONS

1. Standard of Care

In providing services under this Contract, the Consultant shall exercise that degree of skill and care ordinarily used by other reputable members of Consultant’s profession, practicing in the same or similar locality and under similar circumstances (“Standard of Care”).

2. Effect of Expiration

Expiration of the Term shall not extinguish, prejudice, or limit either party's right to enforce this Contract with respect to any default or uncorrected defect in performance.

3. Time/Late Delivery

The parties agree that time is of the essence. By executing this Contract and accepting the SOW, Consultant agrees that the time limits specified in the Statement of Work are reasonable.

Consultant shall use best efforts to minimize any delay. If Consultant anticipates any delay that may prevent timely performance of Consultant’s obligations under this Contract, Consultant 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. By accepting late or otherwise inadequate performance of Consultant’s obligations, the City will not waive its rights to require timely performance of Consultant’s obligations thereafter. If any specified delivery date is not met, Consultant shall be liable for any loss, expense, or damage resulting from the delay, and the City may obtain substitute services from another source and bill all additional costs directly to the Consultant, who shall remain financially liable for all additional acquisition costs.

4. Order of Precedence

This Contract consists of these Terms and Conditions, the SOW, all Exhibits, and the City’s RFP and Consultant’s Proposal. Any apparent or alleged conflict between these items will be resolved by using the following order of precedence:

(a) Amendments executed by the parties after Contract award;

(b) This form Contract as executed by the parties, including all Exhibits;

(c) RFP Requirements as set forth in City's RFP, including without limitations all Exhibits and any Addenda; and

(d) Consultant’s Proposal in response to the RFP, including without limitation, to all supplementary materials.

5. Early Termination of Contract

(a) The City may terminate this Contract for convenience at any time for any reason deemed appropriate in its sole discretion. Termination shall be effective immediately upon City’s delivery of a written notice of termination to Consultant.

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(b) Either party may terminate this Contract in the event of a material breach by the other party that is not timely cured. Before termination is permitted, the party seeking termination shall give the other party written notice of the nature of the alleged breach, its intent to terminate, and provide fifteen (15) calendar days within which to cure the breach. If the breach is not cured within 15 days, the party seeking termination may terminate immediately by giving written notice that the Contract is terminated.

6. Remedies and Payment on Early Termination

(a) If the City terminates pursuant to 5(a) above, the City shall pay the Consultant for work performed in accordance with the Contract prior to the date of the termination notice. No other costs or loss of anticipated profits shall be due or payable.

(b) If the City terminates pursuant to 5(b) above, the City is entitled all remedies available at law or equity. In addition, Consultant shall pay the City for the costs to defend any claim, and all damages, costs, and sums incurred by the City because of the breach.

(c) If the Consultant terminates the Contract pursuant to subsection 5(b), the Consultant’s sole remedy shall be payment for work completed prior to date of City’s receipt of the termination notice. No other costs, loss of anticipated profits or consequential damages shall be paid.

(d) If the City’s termination under Section 5(b) was wrongful, the termination shall be automatically converted to one for convenience and the Consultant shall be paid as if the Contract was terminated under Section 5(a).

(e) In the event of early termination, the Consultant's work product completed prior to the date of termination shall be deemed the property of the City and copies and/or data shall be immediately released to the City.

7. Non-Availability of Funds

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.

8. Assignment

Consultant shall not subcontract, assign, or transfer any of the work scheduled under this Contract without the prior written consent of the City. Notwithstanding City consent, the Consultant shall remain responsible for full performance hereunder. The Consultant agrees that if subcontractors are employed in the performance of the SOW under this Contract, both Consultant and any subcontractors remain subject to the requirements of ORS Chapter 656, Workers’ Compensation.

9. Compliance with Applicable Laws; Funding Requirements

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(a) Consultant shall perform all services in accordance with all applicable federal, state, and local laws and regulations, including without limitations tax laws and terms and conditions incident to receipt of any grant funds.

(b) The City of Portland is committed to equity, nondiscrimination, and meaningful access. It is the policy of the City that no person, on the basis of race, color, national origin, limited English proficiency, disability, age, sex, religion, income level, sexual orientation, gender identity, familial status, marital status or other protected class, be excluded from participation in, denied the benefits of, or be otherwise discriminated against under any of the policies, programs, services, or activities it administers, as provided by Title VI of the Civil Rights Act, Title II of the Americans with Disabilities Act, and related authorities and regulations. Consultant represents and warrants that it is and will remain in compliance with all laws and expressly represents that it is and shall remain in compliance with Title VI of the Civil Rights Act of 1964 and its corresponding regulations during the Term of this Contract.

(c) Consultant shall observe all applicable state and local laws pertaining to public contracts.

ORS Chapters 279A, 279B, and 279C require every public contract to contain certain provisions. To the extent applicable, the provisions of ORS 279A, 279B, and/or 279C are hereby incorporated by this reference herein.

10. Respectful Workplace Behavior

The City is committed to a respectful work environment, free of harassment, discrimination and retaliation and other inappropriate conduct. Every individual has a right to work in a professional atmosphere where all individuals are treated with respect and dignity. The City’s Human Resources Administrative Rule (HRAR) 2.02 covers all employees of the City as well as consultants, vendors or contractors who provide services to the City. Consultant warrants its compliance with the terms and conditions of HRAR 2.02 as further described at:https://www.portland.gov/policies/human-resources-administrative-rules/equal-employment/hrar-202-prohibition-against.

11. Indemnification for Property Damage and Bodily and Personal Injury

(a) Indemnification and Defense Obligations

(i) Claims Unrelated to Professional Liability:

Consultant shall indemnify, defend, save, and hold harmless the City, and its officers, members, agents, and employees, from and against all claims, losses, damages, and costs, including attorney fees, for personal injury and property damage arising out of the wrongful acts or omissions of the Consultant or its Subcontractors, Subconsultants, suppliers, employees, or agents in the performance of Consultant’s services under the Contract.

(ii) Claims Based on Professional Liability:

To the fullest extent permitted by law, and except to the extent prohibited under ORS 30.140(4), Consultant shall indemnify, defend, save, and hold harmless the City, and its officers, members, agents, and employees, from any and all claims, suits, actions, losses, liabilities, damages, costs and expenses, including attorney fees, arising out of the professionally negligent acts, errors or omissions of Consultant or its Subcontractors, https://www.portland.gov/policies/human-resources-administrative-rules/equal-employment/hrar-202-prohibition-against https://www.portland.gov/policies/human-resources-administrative-rules/equal-employment/hrar-202-prohibition-against

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Subconsultants, suppliers, employees, or agents in the performance of Consultant’s professional services under the Contract.

(b) The indemnity obligations of Consultant under this Contract will not in any way be affected or limited by the absence of insurance coverage or by the failure or refusal of any insurance carrier to perform any obligation under insurance policies affecting this Contract.

(c) Consultant’s indemnity obligations are in addition to any other rights or remedies available under this Contract, or in law or in equity to the City. In the event of any claim or demand made against any party entitled to indemnification hereunder, the City may, in its sole discretion, reserve, retain, or apply any monies due to the Consultant under the Contract to resolve such claims; provided, however, that the City may release such funds if the Consultant provides the City with adequate assurance of the protection of the City’s interests, as determined by the City in its sole discretion.

12. Insurance

(a) Consultant shall obtain and maintain in full force at Consultant’s sole cost and expense, throughout the Term and any warranty or extension periods, the required insurance identified below. The City reserves the right to require additional insurance coverage as required by statutory or legal changes to the maximum liability that may be imposed on Oregon cities during the term of the Contract.

(i) Workers’ Compensation. Workers' compensation insurance as required by ORS

Chapter 656 and as it may be amended. Unless exempt under ORS Chapter 656, the Consultant and all Subconsultants shall maintain applicable coverage for all subject workers.

Required and attached // Certified statement of exemption (i.e., completion of

Independent Contractor Certification Statement or similar)

(ii) Commercial General Liability. Consultant shall acquire commercial general liability (“CGL”) and property insurance coverage in an amount not less than $2 million per occurrence for damage to property or personal injury arising from Consultant’s work under this Contract.

Required and attached // Reduced by Authorized Bureau Director or designee // Waived by Authorized Bureau Director or designee

(iii)Automobile Liability. Consultant shall acquire automobile liability insurance to cover bodily injury and property damage in an amount not less than $2 million for each accident. Consultant’s insurance must cover damages or injuries arising out of Consultant’s use of any vehicle.

(iv) Professional Liability. Professional Liability and/or Errors & Omissions insurance to cover damages caused by negligent acts, errors or omissions related to the professional services, and performance of duties and responsibilities of the Consultant

Page 6 of 29 Req# Contract# under this Contract in an amount with a combined single limit of not less than $1,000,000 per occurrence and aggregate of $3,000,000 for all claims per occurrence.

In lieu of an occurrence-based policy, Consultant may have claims-made policy in an amount not less than $1,000,000 per claim and $3,000,000 annual aggregate, if the Consultant obtains an extended reporting period or tail coverage for not less than three (3) years following the termination or expiration of the Contract.

(v) [Optional Insurance where drones might be used, delete if not needed] Aviation

Liability

Drone operator(s) shall acquire aviation liability and property damage insurance coverage in an amount not less than $1 million per occurrence for damage to property or personal injury arising from Contractor’s Drone work under this Contract.

Required and attached // Waived by Bureau Director or designee // Reduce by Bureau Director or designee

(b) Continuous Coverage; Notice of Cancellation: The Consultant agrees to maintain continuous, uninterrupted coverage for the duration of the Contract. There shall be no termination, cancellation, material change, potential exhaustion of aggregate limits or non-renewal of coverage without thirty (30) days written notice from Consultant to the City. If the insurance is canceled or terminated prior to completion of the Contract, Consultant shall immediately notify the City and provide a new policy with the same terms. Any failure to comply with this clause shall constitute a material breach of Contract and shall be grounds for immediate termination of this Contract.

(c) Additional Insured: The liability insurance coverages, except Professional Liability, Errors and Omissions, or Workers’ Compensation, shall be without prejudice to coverage otherwise existing, and shall name the City of Portland and its bureaus/divisions, officers, agents and employees as Additional Insureds, with respect to the Consultant’s activities to be performed, or products or services to be provided. Coverage shall be primary and non-contributory with any other insurance and self-insurance. Notwithstanding the naming of additional insureds, the insurance shall protect each additional insured in the same manner as though a separate policy had been issued to each, but nothing herein shall operate to increase the insurer's liability as set forth elsewhere in the policy beyond the amount or amounts for which the insurer would have been liable if only one person or interest had been named as insured.

(d) Certificate(s) of Insurance: Consultant shall provide proof of insurance through acceptable certificate(s) of insurance, including additional insured endorsement form(s) and all other relevant endorsements, to the City prior to the award of the Contract if required by the procurement documents (e.g., request for proposal), or at execution of Contract and prior to any commencement of work or delivery of goods or services under the Contract. The Certificate(s) will specify all of the parties who are endorsed on the

Page 7 of 29 Req# Contract# policy as Additional Insureds (or Loss Payees). Insurance coverages required under this Contract shall be obtained from insurance companies acceptable to the City of Portland.

The Consultant shall pay for all deductibles and premium. The City reserves the right to require, at any time, complete, certified copies of required insurance policies, including endorsements evidencing the coverage the required.

(e) Subconsultant(s): Consultant shall contractually require its Subconsultants to acquire, and maintain in effect until full performance of their Work under this Contract, insurance equal to the minimum coverage limits required above.

13. Ownership of Work Product

(a) All work product produced by the Consultant under this Contract is the exclusive property of the City upon payment in full to Consultant as set forth in this Contract.

“Work Product” includes, but is not limited to research, reports, computer programs, manuals, drawings, recordings, photographs, artwork and any data or information in any form. The Consultant 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,” the Consultant hereby 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 doctrines. Consultant shall obtain such interests and execute all documents necessary to fully vest such rights in the City. Consultant 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. If the Consultant is an architect, the Work Product is the property of the Consultant-Architect, and by execution of this Contract, the Consultant- Architect grants the City an exclusive and irrevocable license to use that Work Product.

City’s alteration of Consultant’s Work Product or its use by City for any other purpose shall be at City’s sole risk.

(b) Notwithstanding the above, all pre-existing trademarks, services marks, patents, copyrights, trade secrets, and other proprietary rights of Consultant are and will remain the exclusive property of Consultant.

14. Business Tax Registration

The Consultant shall obtain a City of Portland business tax registration number as required by Portland City Code (“PCC”) 7.02 prior to beginning work under this Contract.

15. Successors in Interest

The provisions of this Contract shall be binding upon and shall inure to the benefit of the Parties hereto, and their respective successors and approved assigns.

16. Severability

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

17. Waiver

The failure of the City to enforce any provision of this Contract shall not constitute a waiver by the City of that or any other provision.

18. Errors

The Consultant shall, without cost to the City, promptly correct errors or omissions related to the services required by this Contract.

19. Governing Law/Venue

The provisions of this Contract shall be interpreted, construed and enforced in accordance with, and 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 Contract must be brought in the appropriate court in Multnomah County, Oregon.

20. Amendments; Change Orders

Any changes to the provisions of this Contract’s dollar amount, must be made by written amendment and approved by the Chief Procurement Officer to be valid. Any other changes to the provisions of this Contract, including changes to the scope of work, key personnel, Subconsultants or other changes, must be made by written amendment and approved by the City.

If Consultant desires to replace any Subconsultants under this Contract, Consultant will provide equal opportunity and access for all businesses, including minority- and women-owned businesses.

(a) Amendment of the Contract. Any changes to the provisions of this Contract shall be in the form of an Amendment. Amendments must be in writing, must be approved as to form by the City Attorney, and must be executed in writing by authorized representatives of the parties.

(b) Change Orders to a Statement of Work. Amendments to the Scope of Work shall be made using a Change Order that modifies a Statement of Work or Task Order.

(c) The Consultant agrees to amend this Contract if the City obtains or performs a disparity study that finds a disparate impact based on race and/or gender. The amendment will incorporate preferences and goals for Minority, Women, Veteran, and Emerging Small Business Enterprises (MBE/WBE/VBE/ESB) to be used by Consultant and will be used for any new or replacement subcontracting that occurs during the remaining term of the

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Contract but will not terminate subcontracting agreements existing at the time of such amendment.

21. Prohibited Conduct

The Consultant shall not hire any City employee who evaluated the proposals or authorized the award of this Contract for two years after the date the Contract was authorized without the express written permission of the City and provided the hiring is permitted by state law.

22. Payment to Vendors and Subconsultants

The Consultant shall timely pay all Subconsultants and suppliers providing services or goods for this Contract. If the Consultant fails to make timely payments to its Subcontractors, Subconsultants, or suppliers, the City is entitled to take any action permitted by law, including, but not limited to, the following:

(a) Withhold all or part of any progress payment until Consultant makes payment;

(b) Find that the Consultant is not a qualified bidder for future projects per the City’s consideration of the Consultant’s record of past performance pursuant to ORS 279C.110(3);

(c) Directly make payment to the Subcontractor, Subconsultant, and supplier who has not received proper payment; and

(d) Terminate the Contract for and Event of Default as provided herein.

23. Records and Audits

(a) Records Retention

(i) The Consultant and its subconsultants and suppliers shall maintain all fiscal records relating to the Contract in accordance with generally accepted accounting principles.

The Consultant and its subconsultants shall maintain all other records necessary to clearly document their performance of the work and any claims for additional compensation or requests for additional contract time arising from or relating to their performance under the Contract.

(ii) The Consultant shall include in its subcontracts, purchase orders and all other written agreements a provision requiring all subconsultants, material suppliers, providers of rented operated equipment and persons submitting cost or pricing data according to the term of a contract, at all tiers, to comply with this section.

(b) City Audits: The City, either directly or through a designated representative, may conduct financial and performance audits of the billing and Products or Services at any time during the Contract and during the records retention period listed above. Audits shall be conducted in accordance with generally accepted auditing standards as promulgated in

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Government Auditing Standards by the Comptroller General of the United States Government Accountability Office.

(c) Access to Records: The City and its authorized representatives shall have timely access to, and an opportunity to inspect, examine, copy and audit all books and records relating to the Contract, for any reason, upon reasonable notice.

(i) Such books and records shall be maintained by the Consultant and all subconsultants, suppliers and persons with cost or pricing data for a minimum period of six (6) years from the date of Final Payment under the Contract, or until the conclusion of any audit, controversy, litigation, dispute or claim arising out of, or related to, the Contract, whichever is longer.

(ii) The Consultant and all subconsultants, suppliers, and persons with cost or pricing data shall maintain all records in such a manner that providing a complete copy is neither unreasonably time consuming nor unreasonably burdensome for the Consultant or the City. Failure to maintain the records in this manner shall not be an excuse for not providing the records.

(iii)The Consultant and all subconsultants, suppliers, and persons with cost or pricing data shall produce all such books and records in Portland, Oregon, regardless of whether the records are produced pursuant to this provision of the Contract or because of a claim, litigation, arbitration or other proceeding. The Consultant or a subconsultant, supplier, or other person may produce the books and records elsewhere if it fully compensates the City for the reasonable costs of travel to and from the place where the records are produced and the reasonable cost of any employee’s time in having to travel.

(d) Overpayment: If an audit discloses that payments to the Consultant were more than the amount to which the Consultant was entitled, the Consultant 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.

24. Electronic Signatures

The City and Consultant may conduct this transaction, including any Contract amendments, by electronic means, including using electronic signatures.

25. Merger Clause

This Contract, and the Contract Documents identified at Section 3 above shall be deemed to encompass the entire agreement of the parties and supersede all previous understandings and agreements between the parties, whether verbal or written.

26. Dispute Resolution/Work Regardless of Disputes

The parties shall participate in mediation to resolve disputes before conducting litigation. The mediation shall occur at a reasonable time after the conclusion of the Contract with a mediator

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Notwithstanding any dispute under this Contract, the Consultant shall continue to perform its work pending resolution of a dispute, and the City shall make payments as required by the Contract for undisputed portions of the work. In the event of litigation, no attorney fees are recoverable. No different dispute resolution paragraph(s) in this Contract or any attachment hereto shall supersede or take precedence over this provision.

27. Progress Reports: / / Applicable / / Not Applicable

If applicable, the Consultant shall provide monthly progress reports to the Project Manager as described in the Statement of the Work and Payment Schedule.

28. Consultant's Key Personnel: / / Applicable / / Not Applicable

(a) If applicable, the Consultant shall assign the Key Personnel listed in the Statement of the

Work and Payment Schedule for the work required by the Contract and shall not change Key Personnel without the prior written consent of the City, which shall not be unreasonably withheld. Notwithstanding anything to the contrary herein, Consultant shall, within 30 (thirty) days of receipt a request from the City, replace any Key Person who is not meeting City performance requirements.

(b) The Consultant agrees that the primary personnel assigned to perform the services shall be listed in in the Statement of Work and Consultant shall not change such personnel without the prior written consent of the authorized representative of the City as designated in the SOW. Failure to use the identified Subconsultants without prior written consent is a material breach of contract.

29. Third Party Beneficiaries

There are no third-party beneficiaries to this Contract. Enforcement of this Contract is reserved to the parties.

30. Conflict of Interest

(a) Consultant hereby certifies that, if applicable, its Contract proposal was made in good faith without fraud, collusion or connection of any kind with any other proposer of the same request for proposals or other City procurement solicitation(s), and that the Consultant as a proposer competed solely on its own behalf and without connection or obligation to any undisclosed person or firm. Consultant 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, Consultant, its employee(s), its officer(s) or its director(s) are not City officials/employees or a relative of any City official/employee who:

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(i) has responsibility in making decisions or ability to influence decision-making on the Contract or project to which this Contract pertains;

(ii) has or will participate in evaluation or management of the Contract; or

(iii) has or will have financial benefits in the Contract.

(b) Consultant understands that should it elect to employ any former City official/employee during the term of the Contract then that the former City official/Consultant 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 the City’s Charter, Codes and administrative rules, including lobbying prohibitions under Portland City Code Section 2.12.080.

31. Contractual Statute of Limitations/Statute of Repose for Design Services Claims

The statute of limitations applicable to services provided under this Contract shall be 6 years from the date of Final Completion of the project. “Final Completion” shall have the meaning in the City’s applicable standard construction specifications for the project. The statute of repose applicable to services provided under this Contract shall be 10 years from Final Completion of the project. The statute of limitations and statute of repose set forth herein shall not begin to run until the project reaches Final Completion, regardless of discovery of any condition, act, error, or omission. This provision shall be included in any Subconsultant agreement executed by the Consultant for the performance of services.

32. Notices and Communications

(a) All notices and other communications concerning this Contract shall bear the Contract number assigned by the City. Notices and other communications may be delivered personally, by facsimile, email, by regular, certified or registered mail or other commercial delivery service. A notice to the City will be effective only if it is delivered to that person designated in writing in either:

(i) the Notice of Award of this Contract,

(ii) the Notice to Proceed under this Contract, or

(iii) to another individual specifically designated by this Contract.

(b) A notice to the Consultant shall be effective if it is delivered to the individual who signed this Contract on behalf of Consultant at the address shown with that signature, to a corporate officer if Consultant is a corporation, to a general partner if Consultant is a partnership, or to another individual designated in writing by the Consultant in the Contract or in a written notice to the City.

33. Safety

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Consultant shall ensure that all Work is performed in a safe manner protective of workers and the environment. Accordingly, Consultant shall maintain in place a safety plan that provides for compliance with all safety laws and regulations in effect during the Term. Consultant shall bear the cost of compliance with its safety plan. The City reserves the right but not the obligation to issue a “stop work” order in the event of a potential life safety risk as determined at the City’s discretion.

34. Access to Facilities

Consultant agrees that Consultant’s physical or remote access to City facilities shall be subject to the security interests and health controls necessary to protect public property, City employees and the public. The City shall not be liable for any delays necessary in granting Consultant access to any portion of the facilities or systems.

35. Force Majeure

(a) If a Force Majeure Event occurs, the Party that is prevented by that Force Majeure Event from performing any one or more obligations under this Contract (the “Nonperforming Party”) will be excused from performing those obligations, on condition that (1) the Nonperforming Party used reasonable efforts to perform those obligations, (2) the Nonperforming Party’s inability to perform those obligations is not due to its failure to take reasonable measures to protect itself against the event or circumstance giving rise to the Force Majeure Event, and (3) the Nonperforming Party complies with its obligations under section 35(c).

(b) For purposes of this Contract, “Force Majeure Event” means, with respect to a Party, any event or circumstance, regardless of whether it was foreseeable, that was not caused by that party and that prevents a party from complying with any of its obligations under this Contract, except that a Force Majeure Event will not include a strike or other labor unrest that affects only one Party, an increase in prices, or a change in law.

(c) Upon occurrence of a Force Majeure Event, the Nonperforming Party shall promptly notify the other party of occurrence of that Force Majeure Event, its effect on performance, and how long that Party expects it to last. Thereafter the Nonperforming Party shall update that information as reasonably necessary. During a Force Majeure Event, the Nonperforming Party shall use reasonable efforts to limit damages to the other party and to resume its performance under this Contract.

36. Attachments

The following attachments are incorporated into this Contract.

(a) Exhibit A – Statement of Work

(b) Exhibit B – Compensation

(c) Exhibit C - ______________

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CONSULTANT SIGNATURE:

Consultant represents that Consultant has had the opportunity to consult with its own independently selected attorney in the review of this Contract. Neither Party has relied upon any representations or statements made by the other Party that are not specifically set forth in this Contract.

This Contract constitutes the entire agreement between the City and Consultant and supersedes all prior and contemporaneous proposals and oral and written agreements, between the parties on this subject, and any different or additional terms on a City purchase order or Consultant quotation or invoice.

The parties agree that they may execute this Contract and any Amendments to this Contract, by electronic means, including the use of electronic signatures.

This Contract may be signed in two (2) or more counterparts, each of which shall be deemed an original, and which, when taken together, shall constitute one and the same agreement.

IN WITNESS WHEREOF, the parties hereby cause this Contract to be executed.

I, the undersigned, agree to perform work outlined in this Contract in accordance to the Terms and Conditions and the Statement of Work (Exhibit A); hereby certify under penalty of perjury that I/my business am not/is not in violation of any Oregon tax laws; hereby certify that my business is certified as an Equal Employment Opportunity Affirmative Action Employer and is in compliance with the Equal Benefits Program as prescribed by Sections 5.33.076 and 5.33.077 of Public Contracting Rules of the City of Portland; and hereby certify I am an independent consultant as defined in ORS 670.600

[INSERT Consultant’s Legal Name]

By: Date:

Name:

Title:

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CONTRACT NUMBER: 3000XXXX

CONTRACT TITLE: PROJECT TITLE

CITY OF PORTLAND SIGNATURES:

City Administrator

Chief Procurement Officer

Approved:

Office of City Auditor

Approved as to Form:

Office of City Attorney

Exhibit A – Statement of Work

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Statement of Work

Consultant’s and City’s Project Manager for this Contract are:

For City of Portland: For Consultant:

Name: Name:

Title: Title:

Address: Address:

City, State: City, State:

e-mail: e-mail:

Copy to: Copy to:

1. SCOPE OF WORK

Consultant agrees to provide all the Design Services described below on an ongoing basis in support of, and in conformance with, the time frames described in the Request for Proposals.

1.1.

1.2.

1.3.

1.4.

2. DELIVERABLES AND SCHEDULE:

2.1.

2.2.

2.3.

2.4.

3. CONSULTANT KEY PERSONNEL

The Consultant shall assign the following Key Personnel to do the work in the capacities designated and agrees not to substitute these personnel while working on the Contract without the express approval of the City, which approval shall not unreasonably be withheld:

Exhibit A – Statement of Work

Page 18 of 29 Req# Contract#

NAME ROLE ON PROJECT

4. SUBCONSULTANTS

The Consultant shall assign the following Subconsultants to perform work in the capacities designated:

NAME ROLE ON PROJECT COBID

CERTIFICATION

SUBCONTRACT

AMOUNT

Consultant shall not add, eliminate, or replace any Subconsultant assignments without the prior written consent of the Chief Procurement Officer. Failure to use the identified Subconsultants without prior written consent is a material breach of contract. Any changes must be reported and submitted to the Contract Compliance Specialist. All changes to this Contract, including changes to the Subconsultant participation, must be made by written amendment and approved by the Chief Procurement Officer to be valid.

For Contracts valued $50,000 or more, the Consultant shall submit Subconsultant payment and utilization information electronically in the Contract Compliance Reporting System, reporting ALL Subconsultants employed in the performance of this agreement. More information on this process may be viewed on the City Procurement website at:

https://www.portland.gov/business-opportunities/resources/review-post-award-compliance.

https://www.portland.gov/business-opportunities/resources/review-post-award-compliance

Exhibit B – Compensation

Page 19 of 29 Req# Contract#

COMPENSATION

The maximum that the Consultant will be paid for the work on this Contract is $XXX (hereafter the “not to exceed” amount).

The “not to exceed” amount includes all payments to be made pursuant to this Contract, including reimbursable expenses, and Contract Mitigation if any. Contract Mitigation can be used only with prior written approval of the City prior to any effort being accomplished on added tasks. Nothing in this Contract requires the City to pay for work that does not meet the Standard of Care or other requirements of the Contract. The actual amount to be paid to the Consultant may be less than that amount.

The Consultant shall be paid based on its hourly rates, plus any authorized expenses, in accordance with the tasks listed below. If a task is completed and accepted by the City, and the amount billed by the Consultant is less than the estimated budget for the task, the remaining amount may be used on the other tasks as authorized in writing by the Project Manager. In no event shall the Consultant bill for an amount greater than what is shown for each task.

Task/Phase Description Amount Total Not to Exceed:

The Consultant is entitled to receive progress payments for its work pursuant to the Contract as provided in more detail below. The City will pay Consultant based on invoices for acceptable work performed and approved until the “not to exceed” amount is reached. Thereafter, Consultant must complete work based on the Contract without additional compensation unless there is a change to the scope of work.

Any estimate of the hours necessary to perform the work is not binding on the City. The Consultant remains responsible if the estimate proves to be incorrect. Exceeding the number of estimated hours to complete the work does not impose any liability on the City for additional payment.

If the work is completed before the “not to exceed” amount is reached, the Consultant’s compensation will be based on the Consultant’s bills previously submitted for acceptable work performed and approved.

1. Payment Terms: Net 30 Days

The City shall pay the Consultant as follows upon the submission of invoices approved:

Payment shall be issued by the City net thirty (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

Page 20 of 29 Req# Contract# Design VC Rev09.25 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.

2. 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).

2.1 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.

• 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)

Page 21 of 29 Req# Contract# Design VC Rev09.25

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 shall be pre-approved in writing by the PWB 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.

2.2 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.

2.3 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 https://www.gsa.gov/travel/plan-book/per-diem-rates

Page 22 of 29 Req# Contract# Design VC Rev09.25 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.

2.4 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. Hourly Rates

3.1. 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. The Water Bureau has authorized an annual rate increase of 2% for each year of this Contract.