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How To Story ~ C200006 CITY OF TIGARD OREGON-CONTRACT SUMMARY FORM (THIS FORM MUSTACCOMPANYEVERY CONTRACT Contract Title: Utility:Communications Consultant Number: Contractor: How To Story Contract Total: $11,300.00 Contract Overview: Assist the City with communication strategies surrounding its various utility rates Initial Risk Level: Extreme ] High ❑Moderate M Low Risk Reduction Steps: Risk Comments: Risk Signature:' Contract Manager: Marissa Grass Ext: 2428 Department: PW Type: Personal Svc ❑ Professional Svc` ❑ ArchitecturalAgr ublic Imp ❑ Genera Svc Engineering;Svc ❑ Other: Start Date:2 t End Date: Quotes/Bids/Proposal: FIRM AMOUNT/SCORE How To Story Direct Appt Account String: Fund-Division-Avco4L Zork Order—Activity Type Amount FY 630-6000-54001 $1,300.00 FY FY FY FY Approvals- LCRB Date: Department Comments: Department Signature: Purchasing Comments: Purchasing Signature: City Manager Comments: ?! City Manager Signature: After securing all required approvals, forward original copy to the Contracting and Purchasing Office along with a completed Contract Checklist. Contract Numbec2aoLL CITY OF TIGARD,OREGON PERSONAL SERVICES CONTRACT UTILITY COMMUNICATIONS CONSULTANT THIS AGREEMENT made and entered into this 15"' day of July,2019 by and between the City of Tigard, a municipal corporation of the State of Oregon, hereinafter called City, and How to Ston hereinafter called Contractor. RECITALS WHEREAS, the City's 2019-20 fiscal year budget provides for services related to Public Works Administration;and WHEREAS,City has need for the services of a company with a particular training,ability,knowledge, and experience possessed by Contractor, and WHEREAS, City has determined that Contractor is qualified and capable of performing the professional services as City does hereinafter require,under those terms and conditions set forth, THEREFORE, the Parties agree as follows: I. SERVICES TO BE PROVIDED Contractor will initiate services immediately upon receipt of City's notice to proceed together with an executed copy of this Agreement. Contractor agrees to complete work that is detailed in Exhibit A,incorporated herein by reference. 2. EFFECTIVE DATE AND DURATION This Agreement is effective upon the date of execution and expires on September 30, 2019, unless otherwise terminated or extended. All work under this Agreement must be completed prior to the expiration of this Agreement. 3. COMPENSATION The City agrees to pay Contractor in accordance with the fee schedule outlined in Exhibit A. The total amount paid to the Contractor by the City may not exceed One Thousand Three Hundred and No/100 Dollars ($1,300.00). Payments made to Contractor will be based upon the following applicable terms: A. Payment by City to Contractor for performance of services under this Agreement includes all expenses incurred by Contractor, with the exception of expenses, if any,identified in this Agreement as separately reimbursable. B. Payment will be made in installments based on Contractor's invoice, subject to the approval of the City Manager,or designee,and not more frequently than monthly. Unless otherwise agreed, payment will be made only for work actually completed as of the date of invoice. C. Payment by City releases City from any further obligation for payment to Contractor for services performed or expenses incurred as of the date of the invoice. Payment may not be considered acceptance or approval of any work or waiver of any defects therein. D. Contractor must make payments promptly, as due, to all persons supplying labor or materials for the performance of the work provided for in this Agreement. E. Contractor may not permit any lien or claim to be filed or prosecuted against the City on any account of any labor or material furnished. F. Contractor will pay to the Department of Revenue all sums withheld from employees pursuant to CIRS 316.167. G. Contractor will pay all contributions or amounts due the Industrial Accident Fund from the contractor or any subcontractor. H. If Contractor fails, neglects,or refuses to make prompt payment of any claim for labor or services furnished to Contractor or a subcontractor by any person as such claim becomes due, City's Finance Director may pay such claim and charge the amount of the payment against funds due or to become due the Contractor. The payment of the claim in this manner does not relieve Contractor or their surety from obligation with respect to any unpaid claims. 1. Contractor will promptly, as due, make payment to any person, co-partnership, association,or corporation, furnishing medical,surgical,and hospital care or other needed care and attention, incident to sickness or injury, to the employees of Contractor, of all sums that Contractor agrees to pay for the services and all moneys and sums that Contractor collected or deducted from the wages of employees pursuant to any law, contract,or agreement for the purpose of providing or paving for services. J. Contractor and its employees, if any, are not active members of the Oregon Public Employees Retirement System and are not employed for a total of 600 hours or more in the calendar year by any public employer participating in the Retirement System, K. Contractor must obtain,prior to the execution of any performance under this Agreement, a City of Tigard Business License. The Tigard Business license is based on a calendar year with a December 31st expiration date. New businesses operating in Tigard after June 30th of the current year will pay a pro-rated fee though the end of the calendar year. L. The City certifies that sufficient funds are available and authorized for this Agreement during the current fiscal year. Funding during future fiscal years is subject to budget approval by Tigard's City Council. 4. OWNERSHIP OF WORK PRODUCT City is the owner of and is entitled to possession of any and all work products of Contractor which result from this Agreement, including any computations, plans, correspondence, or pertinent data and information gathered by or computed by Contractor prior to termination of this Agreement by Contractor or upon completion of the work pursuant to this Agreement. 2019 PSA- t"tility Communications Consultant 2 1 ' a 5. ASSIGNMENT/DELEGATION Neither party may assign, sublet or transfer any interest in or duty under this Agreement without the written consent of the other and no assignment has any force or effect unless and until the other party, has consented. If City agrees to assignment of tasks to a subcontract, Contractor is fully responsible for the acts or omissions of any subcontractors and of all persons employed by them. I Neither the approval by City of any subcontractor nor anything contained herein creates any contractual relation between the subcontractor and Citv. The provisions of this Agreement are binding upon and will inure to the benefit of the parties to the Agreement and their respective successors and assigns. 6. STATUS OFCONTRACTORAS INDEPENDENT CONTRACTOR Contractor certifies that: A. Contractor acknowledges that for all purposes related to this r Agreement,Contractor is an independent contractor as defined by ORS 670.600 and not an employee of City. Contractor is not entitled to benefits of any kind to which an employee of City is entitled and is solely responsible for all payments and taxes required by law.' Furthermore, in the event that Contractor is found by a court of law or any administrative agency to be an employee of City for any purpose, City is entitled to offset compensation 'due, or to demand repavment of any amounts paid to Contractor under the terms of this Agreement, to the full extent of any benefits or other remuneration Contractor receives (from City or third party) as a result of said finding and to the full extent of any payments that City is required to make (to Contractor or to a third party) as a result of said finding. B. Contractor is not an officer,employee,or agent of the City as those terms are used in ORS 30.265. 7. CONFLICT OF NTEREST The undersigned Contractor hereby represents that no employee of the City, or any partnership or corporation in which a City employee has an interest, has or will receive any remuneration of any description from Contractor, either directly or indirectly, in connection with the letting or performance of this Agreement,except as specifically declared in writing. If this payment is to be charged against Federal funds, Contractor certifies that he/she is not currently employed by the Federal Government and the amount charged does not exceed his or her normal charge for the type of service provided. 8. INDEMNIFICATION City has relied upon the professional ability and training of Contractor as a material inducement to enter into this Agreement. Contractor represents that all of its work will be performed in accordance with generally accepted professional practices and standards as well as the requirements of applicable federal, state, and local laws, it being understood that acceptance of a Contractor's work by City will not operate as a waiver or release. Contractor agrees to indemnify and defend the City, its officers, employees, agents, and representatives and hold them harmless from any and all liability, causes of action, claims, losses, damages, judgments, or other costs or expenses, including attorney's fees and witness 2019 PSA-Utility Communications Consultant 3 1 P a g1 costs (at both trial and appeal level,whether or not a trial or appeal ever takes place including any hearing before federal or state administrative agencies),that may be asserted by any person or entity which in any way arise from, during, or in connection with the performance of the work described in this contract, except liability arising out of the sole negligence of the City and its employees. Such indemnification will also cover claims brought against the City under state or federal worker's compensation laws. If any aspect of this indemnity is found to be illegal or invalid for any reason whatsoever, such illegality or invalidity does not affect the validity of the remainder of this indemnification. 9. INSURANCE Contractor and its subcontractors must maintain insurance acceptable to City in full force and effect throughout the term of this contract. Such insurance must cover risks arising directly or indirectly out of Contractor's activities or work hereunder, including the operations of its subcontractors of any tier. The policy or policies of insurance maintained by the Contractor must provide at least the following Emits and coverages: A. Commercial General Liability Insurance Contractor will obtain,at Contractor's expense,and keep in effect during the term of this contract,Comprehensive General Liability Insurance covering Bodily Injury and Property Damage on an "occurrence" form (CG 2010 1185 or equivalent). This coverage must include Contractual Liability insurance for the indemnity provided under this contract. The following insurance will be carried: Cqverwle Limit General Aggregate $2,000,000 Personal&Advertising Injury $1,000,000 Each Occurrence $1,000,000 Fire Damage (Any one fire) $50,000 B. risurance The Contractor, its subcontractors, if any, and all employers providing work, labor, or materials under this Contract that are subject employers under the Oregon Workers' Compensation Law must comply with ORS 656,017, which requires them to provide workers' compensation coverage that satisfies Oregon law for all their subject workers. Out-of-state employers must provide Oregon workers' compensation coverage for their workers who work at a single location within Oregon for more than 30 days in a calendar year. Contractors who perform work without the assistance or labor of any employee need not obtain workers' compensation coverage. All non-exempt employers must provide Employer's liability Insurance with coverage limits of not less than $1,000,000 each accident. C. Additional—Insured Provision than Workers' Compensation and Professional All required insurance policies, other agents, and representatives as Liability, must name the City its officers, employees, additional insureds with respect to this Agreement. 2019 PSA-Utility Communications Consultant D. Insurance Gamier Ratin Coverages provided by the Contractor must be underwritten by an insurance company deemed acceptable by the City. All policies of insurance must be written by companies having an A.M. Best rating of"A-VII"or better,or equivalent. The City reserves the right to reject all or any insurance carrier(s) with an unacceptable financial rating. E. Self-Insurance The City understands that some contractors may self-insure for business risks and the City will consider whether such self-insurance is acceptable if it meets the minimum insurance requirements for the type of coverage required. If Contractor is self-insured for commercial general liability or automobile liability insurance, Contractor must provide evidence of such self-insurance. Contractor must provide a Certificate of Insurance showing evidence of the coverage amounts on a form acceptable to the City. The City reserves the right in its sole discretion to determine whether self-insurance is 'adequate. F. Certificates of Insurance As evidence of the insurance coverage required by the contract, Contractor will furnish a Certificate of Insurance to the City. No contract is effective until the required Certificates of Insurance have been received and approved by the City. The certificate will specify and document all provisions within this contract and include a copy of Additional Insured Endorsement. A renewal certificate will be sent to the below address prior to coverage expiration. G. Primate Coverage Clarification The Parties agree that Contractor's coverage is primary to the extent permitted by law. The parties further agree that other insurance maintained by the City is excess and not contributory insurance with the insurance required in this section. H. Qftu--L—iabiJitX—CIaujg A cross-liability clause or separation of insureds clause will be 'included in all general liability,professional liability,pollution, and errors and omissions policies required,by this Agreement. A certificate in form satisfactory to the City certifying to the issuance of such insurance will be forwarded to: City of Tigard Attn: Contracts and Purchasing Office 13125 SW Hall Blvd. Tigard, Oregon 97223 At the discretion of the City, a copy of each insurance policy, certified as a true cop), by an authorized representative of the issuing insurance company, may be required to be forwarded to the above address. 2019 PSA Utility Communication-Consultant Such policies or certificates must be delivered prior to commencement of the work. The procuring of such required insurance )will not be construed to limit Contractor's liability hereunder. Notwithstanding said insurance, Contractor is obligated for the total amount of anv damage, injury, or loss caused by negligence or neglect connected with this Agreement. 10. METHOD &PLACE OF SUBMITTING NOTICE, BILLS AND PAYMENTS All notices, bills and payments will be made in writing and may be given by personal delivery, mail,or by fax. Payments may be made by personal delivery,mail,or electronic transfer. The following addresses will be used to transmit notices, bills,payments, and other information: Attn: Marissa Grass Attn: David Sewell McCann Address: 13125 SW Hall Boulevard Address: 1100 Taulbee Lane Tigard,Oregon 97223 Austin,Texas 7875', Phone: (503) 718-2428 Phone: (.OpZ ) 2, Email: marissaQtigard-2Lov Email: davidLa)davidseweUmccann.com Notice will be deemed given upon deposit in the United States mail,postage prepaid,or when so faxed,upon successful fax. In all other instances,notices,bills and payments will be deemed given at the time of actual delivery. Changes may be made in the names and addresses of the person to who notices, bills, and payments are to be given by giving written notice pursuant to this paragraph. 11. SURVIVAL The terms, conditions, representations, and warranties contained in this Agreement survive the termination or expiration of this Agreement. 12. MERGER This writing is intended both as a final expression of the Agreement between the parties with respect to the included terms and as a complete and exclusive statement of the terms of the Agreement. No modification of this Agreement will be effective unless and until it is made in writing and signed by both parties. 13. TERMINATION WITHOUT CAUSE At any time and without cause, City has the right in its sole discretion to terminate this Agreement by giving notice to Contractor. If City terminates this Agreement pursuant to this paragraph,City will pay Contractor for services rendered to the date of termination. 14. TERMINATION WITH CAUSE a. City may terminate this Agreement effective upon delivery of written notice to Contractor, or at such later date as may be established by City, under any of the following conditions: i, If City funding from federal, state, local, or other sources is not obtained and continued at levels sufficient to allow for the purchase of the indicated quantity of services. This Agreement may be modified to accommodate a reduction in funds. 2019 PSA -utility Communications Consultant 6 1 F, a is ii. If federal or state regulations or guidelines are modified, changed, or interpreted in such a way that the services are no longer allowable or appropriate for purchase under- this nderthis Agreement. iii. If any license or certificate required by law or regulation to be held by Contractor, its subcontractors, agents, and employees to provide the services required by this Agreement is for any reason denied,revoked, or not renewed. iv. If Contractor becomes insolvent,if voluntary or involuntary petition in bankruptcy is filed by or against Contractor,if a receiver or trustee is appointed for Contractor,or if there is an assignment for the benefit of creditors of Contractor. Any such termination of this agreement under paragraph (A) will be without prejudice to any obligations or liabilities of either party already accrued prior to such termination. b. City, by written notice of default (including breach of contract) to Contractor, may terminate the whole or any part of this Agreement: 1) If Contractor fails to provide services called for by this Agreement within the time specified,ified,or 2) If Contractor fails to perform any of the other provisions of this Agreement, or fails to pursue the work as to endanger performance of this Agreement in accordance with its terms, and after receipt of written notice from City, fails to correct such failures within ten (10) days or such other period as City may authorize. The rights and remedies of City provided above related to defaults (including breach of contract) by Conti-actor are not exclusive and are in addition to any other rights and remedies provided by law or under this Agreement. If City terminates this Agreement under paragraph (B), Contractor will be entitled to receive as full payment for all ser-6ces satisfactorily rendered and expenses incurred, provided, that the City may deduct the amount of damages, if any, sustained by City due to breach of contract by Contractor. Damages for breach of contract include those allowed by Oregon law, reasonable and necessary attorney fees, and other costs of litigation at trial and upon appeal. 15. ACCESS To RECORDS City will have access to such books, documents, papers and records of Contractor as are directly pertinent to this Agreement for the purpose of making audit, examination, excerpts and transcripts. 16. HAZARDDIJ�MATERIM.5 Contractor will comply with all federal Occupational Safety and Health Administration (OSHA) requirements and all Oregon safety and health requirements. In accordance with OSHA and Oregon OSHA Hazard Communication Rules, if any goods or services provided under this Agreement may release,or otherwise result in an exposure to,a hazardous chemical under normal conditions of use (for example,employees of a construction contractor working on-site), it is the responsibil-ity, of Contractor to provide the City with the following information: all applicable Safety Data Sheet,the identity of the chemical/s,how Contractor 2019 PSA- Utility Communications Consultant 7 1 P a t.u will inform employees about any precautions necessary,an explanation of anN labeling system, and the safe work practices to prevent exposure. In addition, Contractor must label, tag, or mark such goods. 17. FORCE MAJEURE Neither City nor Contractor will be considered in default because of any delays in completion and responsibilities hereunder due to causes beyond the control and without fault or negligence on the part of the parties so disenabled, including but not restricted to, an act of God or of a public enemy, civil unrest, volcano, earthquake, fire, flood, epidetruic, quarantine restriction, area-wide strike, freight embargo, unusually severe weather or delay of subcontractor or supplies due to such cause;provided that the pal-ties so disenabled"vill within ten (10) days from the beginning of such delay, notify the other party in writing of the cause of delay and its probable extent. Such notification will not be the basis for a claim for additional compensation. Each party will, however,make all reasonable efforts to remove or eliminate such a cause of delay or default and will, upon cessation of the cause, diligently pursue performance of its obligation under the Agreement. 18. NON-WAIVER The failure of City to insist upon or enforce strict performance by Contractor of any of the terms of this Agreement or to exercise any rights hereunder should not be construed as a waiver or relinquishment to any extent of its rights to assert or rely upon such terms or rights on any future occasion, 19. HOURS OF LABOR.PAY EQUITY In accordance with ORS 279B.235, the following are hereby incorporated in full by this reference: a. Contractor may not employ an individual for more than 10 hours in any one day, or 40 hours in any one week,except as provided by law. For contracts for personal services,as defined in ORS 27911.055,Contractor must pay employees at least time and a half pay for all overtime the employees work in excess of 40 hours in any one week, except for employees who are excluded under ORS 653.010 to 653.261 or under 29 U.S.C, 201 to 209 from receiving overtime. b. Contractor must give notice in writing to employees who work on a public contract,either at the time of hire or before commencement of work on the contract, or by positing a notice in a location frequented by employees, of the number of hours per day and days per week that the employees may be required to work. c. Contractor may not prohibit any of Contractor's employees from discussing the employee's rate of wage,salary, benefits or other compensation with another employee or another person and may not retaliate against an employee who discusses the employee's rate of wage, salary, benefits or other compensation with another employee or another person. d. Contractor must comply with the pay equity provisions in ORS 652.220. Compliance is a material element of this Agreement and failure to comply will be deemed a breach that entitles On,, to terminate this Agreement for cause. 2019 PSA- Utility Communications Consultant 8 1) a c 20. NON-DISCRIMINATION Contractor will comply with all federal,state,and local laws,codes,regulations,and ordinances applicable to the pro-vision of services under this Agreement,including,without limitation: A. Title VI of the Civil Rights Act of 1964; B. Section V of the Rehabilitation Act of 1973; C. The Americans with Disabilities Act of 1990, as amended by the ADA Amendments Act (ADAAA) of 2008 (Pub 1,No 101-336); and D. ORS 659A.142,including all amendments of and regulations and administrative rules,and all other applicable requirements of federal and state civil rights and rehabilitation statutes, rules and regulations. 21. ERRORS Contractor will perform such additional work as may be necessary to correct errors in the work required under this Agreement without undue delays and without additional cost. 22. EXTRA (CHANGES)WORK Only the City's Project Manager for this Agreement may change or authorize additional work. Failure of Contractor to secure authorization for extra work constitutes a waiver of all right to adjust the contract price or contract time due to such unauthorized extra work and Contractor will not be entitled to compensation for the performance of unauthorized work. 23. WARRANTIES Contractor will guarantee work for a period of one year after the date of final acceptance of the work by the owner. Contractor warrants that all practices and procedures, workmanship and materials are the best available unless otherwise specified in the profession. Neither acceptance of the work nor payment therefore relieves Contractor from liability under warranties contained in or implied by this Agreement. Any intellectual property rights delivered to the City under this Agreement and Contractor's services rendered in the performance of Contractor's obligations under this Agreement,will be provided to the City free and clear of any and all restrictions on or conditions of use, transfer, modification, or assignment, and be free and clear of any and all liens, claims, mortgages,security interests, liabilities,charges,and encumbrances of any kind. 24. ATTORNEY'S FEES In the event an action, suit of proceeding, including appeal, is brought for failure to observe any of the terms of this Agreement, each party is responsible for that party's own attorney fees, expenses,costs and disbursements for the action, suit,proceeding,or appeal. 25. CHOICE OF LAW,VENUE The provisions of this Agreement are governed by Oregon law. Venue will be the State of Oregon Circuit Court in Washington County or the U.S, District Court for Oregon,Portland. 26. COMPLIANCE WITH STATE AND FEDERAL LAWS/RULES Contractor will comply with all applicable federal, state and local laws, rules and regulations applicable to the work in this Agreement, 2019 PSA - Utility Communications Consultant 9 1 13 a g c 27. CONIELICI BETWEEN TERMS In the event of a conflict between the terms of this Agreement and Contractor's proposal,this Agreement will control. In the event of conflict between a provision in the main body of the Agreement and a provision in the Exhibits,the provision in the main body of the Agreement will control. In the event of an inconsistency between Exhibit A and Exhibit B, Exhibit A )AU control. 28. AUDI][ Contractor will maintain records to assure conformance with the terms and conditions of this Agreement and to assure adequate performance and accurate expenditures within the contract period. Contractor agrees to permit City, the State of Oregon, the federal government, or their duly authorized representatives to audit all records pertaining to this Agreement to assure the accurate expenditure of funds. 29. SEVERABILITY In the event any provision or portion of this Agreement is held to be unenforceable or invalid by any court of competent jurisdiction,the validity of the remaining terms and provisions will not be impaired unless the illegal or unenforceable provision affects a significant right or responsibility, in which case the adversely affected party may request renegotiation of the Agreement and,if negotiations fail,may terminate the Agreement. 30. COMPLIANCE WITH TAX LAWS Contractor represents and warrants that Contractor is, to the best of the undersigned's knowledge,not in violation of any Oregon tax laws including but not limited to ORS 305.620 and ORS Chapters 316,317, and 318. Contractor's failure to comply with the tax laws of this state or a political subdivision of this state before the Contractor executed this Agreement or during the term of this Agreement is a default for which the City may terminate this Agreement and seek damages and other relief available under the terms of this Agreement or applicable law. IN WITNESS WHEREOF, City and Contractor have caused this Agreement to be executed by their duly authorized officials. CITY OF TIGARD 1�OW TO STORY iJ By: Br"ger, Pub-fic131 rks Director Authorize gent of Consultant TO -7 o zo q Date Date 2019 PSA-Utility Communications Consultant 10 11 a 2,,c Exx[BIT A SERVICES To BE PROVIDED SCOPE OF WORK Five, 30-minute video/phone consultations to be scheduled by September 30, 2019. Consultant will assist the City with communication strategies surrounding its various utihty rates as detailed on Consultant's proposal. COST/RATE ESTIMATES $1,300.00 fixed fee. 2019 PSA- utility Communications Consultant