City Auditor - City Recorder - Council Ordinance - 178171 Pacific Consulting Group Inc contract

This contract is between the City of Portland, Oregon, acting by and through its Elected Officials, hereafter called "City," and Pacific Consulting Group, Inc., hereafter called “Contractor.” The City's Project Manager for this contract shall be Tim Grewe, Chief Administrative Officer, or his designee..

Effective Date and Duration

This contract shall become effective on February 1, 2004. This contract shall expire, unless otherwise terminated or extended, on February 1, 2006.

Statement of Work

(a) The statement of work is contained in EXHIBIT A attached hereto and by this reference made a part hereof.

(b) The delivery schedule for the work is identified in EXHIBIT A.

Consideration

(a) City agrees to pay Contractor a sum not to exceed $268,800.00 for accomplishment of the work.

(b) Interim payments shall be made to Contractor according to the schedule identified in EXHIBIT A.

Terms and conditions listed on pages 2 - 4.

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CONTRACTOR DATA, CERTIFICATION, AND SIGNATURE

Name (please print): Pacific Consulting Group, Inc.

Address: 2366 Eastlake Avenue East, Suite 233, Seattle, WA 98102

Federal Tax ID #: 91-1582291 State Tax ID #: 334223-87 Business License # 669586

Citizenship: Nonresident alien ____ Yes __X__ No

Business Designation (check one): ____ Individual ____ Sole Proprietorship ____ Partnership __X__ Corporation

____ Limited Liability Co (LLC) ____ Estate/Trust ____ Public Service Corp. ____ Government/Nonprofit

Payment information will be reported to the IRS under the name and taxpayer I.D. number provided above. Information must be provided prior to contract approval. Information not matching IRS records could subject you to 20 percent backup withholding.

I, the undersigned, agree to perform work outlined in this contract in accordance to the terms and conditions (listed on pages 2-4 and made part of this contract by reference) and the statement of work made part of this contract by reference; 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 as prescribed by Chapter 3.100 of Code of the City of Portland; and hereby certify I am an independent contractor as defined in ORS 670.600.

Approved by the Contractor: _______________________________________ _____________________

Signature/Title Date

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CITY OF PORTLAND SIGNATURES

Approved by Mayor or Commissioner: _______________________________________________________ Elected Official or Delegate Date

Approved by City Auditor: _______________________________________________________

City Auditor Date

Approved as to form

by City Attorney: _______________________________________________________

Office of City Attorney Date

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1. Access to Records

The Contractor shall maintain, and the City of Portland ("City") and its duly authorized representatives shall have access to the books, documents, papers, and records of the Contractor which are directly pertinent to the specific contract for the purpose of making audit, examination, excerpts, and transcripts for a period of three years after final payment. Copies of applicable records shall be made available upon request. Payment for cost of copies is reimbursable by the City.

2. Audits

(a) The City, either directly or through a designated representative, may conduct financial and performance audits of the billings and services specified in this agreement at any time in the course of the agreement and during the three (3) year period established by section 1, Access to Records. Audits will be conducted in accordance with generally accepted auditing standards as promulgated in Government Auditing Standards by the Comptroller General of the United States General Accounting Office.

(b) If an audit discloses that payments to the Contractor were in excess of the amount to which the Contractor was entitled, then the Contractor shall repay the amount of the excess to the City.

(c) If any audit shows performance of services is not efficient in accordance with Government Auditing Standards, or that the program is not effective in accordance with Government Auditing Standards, the City may pursue remedies provided under section 5, Early Termination of Agreement and section 7, Remedies.

3. Effective Date and Duration

The passage of the contract expiration date (as recorded on reverse side) shall not extinguish, prejudice, or limit either party's right to enforce this contract with respect to any default or defect in performance that has not been cured.

4. Funds

The City certifies that sufficient funds are available and authorized for expenditure to finance the cost of this contract.

5. Early Termination of Agreement

(a) The City and the Contractor, by mutual written agreement, may terminate this Agreement at any time.

(b) The City, on thirty (30) days written notice to the Contractor, may terminate this Agreement for any reason deemed appropriate in its sole discretion.

(c) Either the City or the Contractor may terminate this Agreement in the event of a breach of the Agreement by the other. Prior to such termination, however, the party seeking the termination shall give to the other party written notice of the breach and of the party's intent to terminate. If the party has not entirely cured the breach within fifteen (15) days of the notice, then the party giving the notice may terminate the Agreement at any time thereafter by giving a written notice of termination.

6. Payment on Early Termination

(a) In the event of termination under subsection 5(a) or 5(b), Early Termination of Agreement hereof, the City shall pay the Contractor for work performed in accordance with the Agreement prior to the termination date.

(b) In the event of termination under subsection 5(c), Early Termination of Agreement hereof, by the Contractor due to a breach by the City, then the City shall pay the Contractor as provided in subsection (a) of this section.

(c) In the event of termination under subsection 5(c), Early Termination of Agreement hereof, by the City due to a breach by the Contractor, then the City shall pay the Contractor as provided in subsection (a) of this section, subject to set off of excess costs, as provided for in section 7(a), Remedies.

(c) In the event of early termination all of the Contractor's work product will become and remain property of the City.

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7. Remedies

a) In the event of termination under subsection 5(c), Early Termination of Agreement, hereof, by the City due to a breach by the Contractor, then the City may complete the work either itself, by agreement with another contractor or by a combination thereof. In the event the cost of completing the work exceeds the remaining unpaid balance of the total compensation provided under this contract, then the Contractor shall pay to the City the amount of the reasonable excess.

(b) The remedies provided to the City under section 5, Early Termination of Agreement and section 7, Remedies for a breach by the Contractor shall not be exclusive. The City also shall be entitled to any other equitable and legal remedies that are available.

(c) In the event of breach of this Agreement by the City, then the Contractor's remedy shall be limited to termination of the Agreement and receipt of payment as provided in section 5(c), Early Termination of Agreement and section 6(b), Payment on Early Termination hereof.

8. Subcontracts and Assignment

Contractor shall not subcontract, assign or transfer any of the work scheduled under this agreement, without the prior written consent of the City. Notwithstanding City approval of a subcontractor, the Contractor shall remain obligated for full performance hereunder, and the City shall incur no obligation other than its obligations to the Contractor hereunder. The Contractor agrees that if subcontractors are employed in the performance of this Agreement, the Contractor and its subcontractors are subject to the requirements and sanctions of ORS Chapter 656, Workers’ Compensation.

9. Compliance with Applicable Law

In connection with its activities under this Agreement, Contractor shall comply with all applicable federal, state and local laws and regulations. Contractor shall complete Exhibit B, Independent Contractor/Workers’ Compensation Insurance Questionnaire, which is attached hereto and by this reference made a part hereof.

9a. Indemnity - Claims for Other than Professional Liability

Contractor shall defend, save, and hold harmless the City of Portland, its officers, agents, and employees, from all claims, suits, or actions of whatsoever nature, including intentional acts, resulting from or arising out of the activities of Contractor or its subcontractors, agents or employees under this agreement.

9b. Indemnity - Claims for Professional Liability

Contractor shall defend, save, and hold harmless the City of Portland, its officers, agents, and employees, from all claims, suits, or actions arising out of the professional negligent acts, errors or omissions of Contractor or its subcontractors and sub-consultants, agents or employees in performance of professional services under this agreement.

9c. Indemnity - Standard of Care

If Contractor's services involve engineering or consulting, the standard of care applicable to Contractor's service will be the degree of skill and diligence normally employed by professional engineers or consultants performing the same or similar services at the time such services are performed. Contractor will re-perform any services not meeting this standard without additional compensation.

10. Insurance

Exhibit C is hereby referenced and made a part of this contract.

11. Ownership of Work Product

All work products of the Contractor which result from this contract are the exclusive property of the City.

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12. Nondiscrimination

Contractor agrees to comply with all applicable requirements of federal and state civil rights and rehabilitation statutes, rules, and regulations. Contractor also shall comply with the Americans With Disabilities Act of 1990 (Pub I. No. 101-336) including Title II of that Act, ORS 659.425, and all regulations and administrative rules established pursuant to those laws.

13. 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.

14. Severability

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.

15. 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.

16. Errors

The Contractor shall perform such additional work as may be necessary to correct errors in the work required under this contract without undue delays and without additional cost.

17. Governing Law

The provisions of this contract shall be construed in accordance with the provisions of the laws of the State of Oregon. Any action or suits involving any question arising under this contract must be brought in the appropriate court in Multnomah County Oregon.

18. Amendments

All changes to this contract, including changes to the scope of work and contract amount, must be made by written amendment and approved by the Purchasing Agent to be valid. Any amendment that increases the original contract amount by more than 25% must be approved by the City Council to be valid.

19. Business License

The Contractor shall obtain a City of Portland business license as required by PCC 7.02 prior to beginning work under this Agreement. The Contractor shall provide a business license number in the space provided on page one of this Agreement.

20. Prohibited Interest

(a) No City officer or employee during his or her tenure or for one year thereafter shall have any interest, direct or indirect, in this Agreement or the proceeds thereof.

(b) No City officer or employee who participated in the award of this Agreement shall be employed by the Contractor during the period of the Agreement.

21. Payment to Vendors and Subcontractors

The Contractor shall timely pay all suppliers, lessors and contractors providing it services, materials or equipment for carrying out its obligations under this Agreement. The Contractor shall not take or fail to take any action in a manner that causes the City or any materials that the Contractor provides hereunder to be subject to any claim or lien of any person without the City's prior written consent.

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Merger Clause

THIS CONTRACT AND ATTACHED EXHIBITS CONSTITUTES THE ENTIRE AGREEMENT BETWEEN THE PARTIES. NO WAIVER, CONSENT, MODIFICATION, OR CHANGE OF TERMS OF THIS CONTRACT SHALL BIND EITHER PARTY UNLESS IN WRITING AND SIGNED BY BOTH PARTIES. SUCH WAIVER, CONSENT, MODIFICATION, OR CHANGE IF MADE, SHALL BE EFFECTIVE ONLY IN SPECIFIC INSTANCES AND FOR THE SPECIFIC PURPOSE GIVEN. THERE ARE NO UNDERSTANDINGS, AGREEMENTS, OR REPRESENTATIONS, ORAL OR WRITTEN, NOT SPECIFIED HEREIN REGARDING THIS CONTRACT. CONTRACTOR, BY THE SIGNATURE OF ITS AUTHORIZED REPRESENTATIVE, HEREBY ACKNOWLEDGES THAT HE OR SHE HAS READ THIS CONTRACT, UNDERSTANDS IT AND AGREES TO BE BOUND BY ITS TERMS AND CONDITIONS.

22. Progress Reports

The Contractor shall provide progress reports as identified in Exhibit A. All reports and documents prepared for the City by Contractor shall be in Microsoft Office and related software unless an alternative is agreed to in advance by Project Manager. Microsoft Word shall be used whenever practical for as much of written monthly Quality Assurance project reports as practical unless an alternative is agreed to in advance by Project Manager. All reports and documents prepared by Contractor, no matter what software is used to prepare them, may include color or other graphic techniques only to the extent that information in the report or document is not lost through black and white reproduction of the document or report.

23. Contractor's Personnel

The Contractor shall assign Timothy C. Easton and Robert S. Fuller to complete the work identified in Exhibit A. Substitution of different personnel must be approved by the Project Manager prior to the change. Substitutions without such prior approval will be considered a breach of this contract. Contractor may employ or subcontract with others as required and as approved by the Project Manager.

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EXHIBIT A

STATEMENT OF WORK AND PAYMENT TERMS

STATEMENT OF WORK

The City requires professional quality assurance (QA) services to provide ongoing independent written assessments of the process, interim and final products, and progress as the City replaces its existing municipal water, sewer and storm water utility customer information, billing, accounting, reporting and collections system (CIS) within an established project budget and timetable (Project).

In accomplishing this work Robert S. Fuller (Senior Associate, Pacific Consulting Group, Inc.) will serve as the Contractor’s Project Manager, and Timothy C. Easton (President, Pacific Consulting Group, Inc.) will assist. Contractor’s key contacts for this work will include the following City staff and consultants, or their successors:

Project Manager

Tim Grewe, Chief Administrative Officer

Executive Committee

Mort Anoushiravani, Administrator, Bureau of Water Works

Dean Marriott, Director, Bureau of Environmental Services

Matt Lampe, Director, Bureau of Technology Services and Chief Technology Officer

CIS Project Management

Julie Shervey, City Project Manager

William Johnson, Contract Project Manger, Management Services Utility Group

CIS Software Vendor Project Manager

Richard Hofland, Chair, Project Advisory Committee

The Project Manager, Executive Committee and CIS Project Management are collectively referred to hereafter as “City Management.”

TASKS:

1. Quality Assurance Project Planning

Within thirty (30) days of this contract’s effective date the Contractor shall develop and obtain the Project Manager’s approval of a quality assurance work plan (QA Work Plan). The QA Work Plan shall be developed in cooperation with City Management, and identify key Project deliverables and payment milestones, QA deliverables, QA milestones and QA tasks to be completed during this engagement. The QA Work Plan will mirror the overall Project work plan and schedule prepared by CIS Project Management. Contractor will be sensitive regarding the time demands required of City Management, other City staff and CIS software vendor staff during both the design and execution of the QA Work Plan.

2. Monthly Quality Assurance Project Reporting

Contractor shall prepare and deliver written monthly QA status reports (Monthly Reports) to the Project Manager and discuss them with the Project Manager and others as the Project Manager may direct. Such additional discussions may involve CIS Project Management, the Executive Committee, the Mayor, Commissioner(s)-in-charge of the Bureaus of Water Works and Environmental Services, other members of the City Council or the media. The first Report shall be due the first of the month that is at least sixty (60) days after this contract’s effective date, and subsequent Monthly Reports shall be due the first of each month thereafter until the expiration date of this contract.

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EXHIBIT A

STATEMENT OF WORK AND PAYMENT TERMS

Drafts of Monthly Reports shall be shared with CIS Project Management, and shared and discussed as necessary with City Management. Sharing and discussion of draft Monthly Reports with CIS Project Management and City Management does not require the Contractor to alter or adjust any statement the Contractor wishes to convey to the Project Manager. The purpose of this requirement to share and discuss draft Monthly Reports is to ensure that Contractor is aware of the views and opinions of CIS Project Management concerning the matters the Monthly Reports may contain, and to give CIS Project Management the opportunity to implement appropriate recommendations on a timely basis. Draft and final Monthly Reports shall at a minimum address the following topics:

• Risk Management - Contractor shall identify potential risks to successful Project completion, mitigation options and responsibility for corrective action. Contractor shall monitor identified Project risks in subsequent Monthly Reports until the Contractor and the Project Manager agree that the risk has been eliminated as a concern.

• Issue Management - In addition to Project risks, Contractor shall identify other potential issues or impediments to successful Project completion. As part of this work Contractor shall monitor CIS Project Management’s internal issue tracking tools. Throughout the term of this contract, if reasonably possible, Contractor shall provide proactive recommendations on issue mitigation options and responsibility for corrective action to CIS Project Management as an early warning and in advance of any actual problem developing for the Project. Contractor shall monitor identified Project issues in subsequent Monthly Reports until the Contractor and the Project Manager agree that the issue has been eliminated as a concern. If CIS Project Management cannot resolve an issue or if Contractor disagrees with the resolution, Contractor shall escalate the issue to the Project Manager for resolution.

• Project Organization - Contractor shall review the organizational structure for the Project, including its relationship to operation and support for the City’s existing CIS, and either confirm that the structure is appropriate, or recommend changes that may improve the probable success of the Project.

• Work Products and Activity - Contractor shall continually monitor key Project work activities, and deliverable products. Contractor may attend Project meetings as Contractor deems necessary to observe progress and monitor issues. Contractor shall include an assessment of work products and activity in draft and final Monthly Reports.

• Quality Management - Contractor shall review and critique drafts of key Project deliverables and provide recommendations for improvement to CIS Project Management based upon best practices and Contractor’s experience. Contractor shall review software testing plans and test results as well as changes in City business practices identified and recommended by CIS Project Management. Contractor shall include an assessment of the quality of project deliverables and testing plans, test results and business practice changes in draft and final Monthly Reports.

• Cost, Resource and Schedule Management - Contractor shall review and monitor Project costs, resources and schedule. Contractor shall include an analysis of this information in draft and final Monthly Reports.

3. Final Assessment of City Readiness for Live Operation of the Replacement CIS Solution

The Contractor shall provide a written assessment to the Project Manager on the recommendation from CIS Project Management to proceed to live operation of the replacement CIS solution. In preparing this assessment, and as the Project nears completion, Contractor shall work with CIS Project Management to evaluate overall City readiness for change from the City’s current CIS to live operation on the replacement CIS solution. Contractor shall periodically visit with City staff who will use the replacement CIS, and/or who have managerial interest it its success, to determine if they are receiving adequate support from Project staff and are making progress in readying their operations for use of

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EXHIBIT A

STATEMENT OF WORK AND PAYMENT TERMS

the replacement CIS. Contractor shall develop written readiness assessments to identify any issue that needs resolution prior to the change to live operation of the replacement CIS solution, including but not limited to:

• Business process changes required to successfully use the replacement CIS

• Interfaces between replacement CIS and other City business systems

• Accounting, audit and financial integrity

• Financial and other reporting requirements

• Technical computing infrastructure and production environment

• Security management for technical computing infrastructure and production environment and CIS data

• Staffing levels, skills and training in operation of the replacement CIS and its technical environment

• Transition plans for staff supporting the City’s current CIS

• Transition plans for Project staff

4. Final Report

Within thirty (30) days of conversion to live operation of the replacement CIS solution the Contractor shall prepare and deliver a written report on the Project’s success compared to the Project work plan and schedule prepared by CIS Project Management, including but not limited to:

• Summary of QA activities conducted during the Project

• Summary of Project successes and failures

• Recommendations for improvements in future City implementation projects for large, complex business systems

PAYMENT TERMS

The Contractor shall perform the services, deliver the products, and complete Tasks enumerated above. Contractor shall be paid at the rate of $11,200 per month beginning the effective date of this contract for all services rendered, including all expenses. Monthly payments shall continue until Contractor completes the Final Report described above. Contractor may invoice City each month for services rendered during the previous month. Invoices shall include a summary of work performed. The Project Manager shall approve all Contractor invoices prior to payment by the City. In the event the Project Manager does not approve the invoice, Project Manager shall notify Contractor and note those areas of Contractor work that is inadequate. Contractor shall re-perform services or correct deficiencies noted for approval and subsequent payment. The total amount of compensation to be paid to Contractor under this agreement shall not exceed $268,800.00.

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EXHIBIT B

INDEPENDENT CONTRACTOR CERTIFICATION STATEMENT

SECTION A

CONTRACTOR CERTIFICATION: I, undersigned, am authorized to act on behalf of entity designated below, hereby certify that entity has current Workers' Compensation Insurance.

Signature_________________________________ Date_________________________ Entity_______________________

If entity does not have Workers' Compensation Insurance, City Project Manager and Contractor complete the remainder of this form.

SECTION B

ORS 670.600 Independent contractor; standards. As used in various provisions of ORS Chapters 316, 656, 657, and 701, an individual or business entity that performs labor or services for remuneration shall be considered to perform the labor or services as an "independent contractor" if the standards of this section are met. The contracted work meets the following standards:

1. The individual or business entity providing the labor or services is free from direction and control over the means and manner of providing the labor or services, subject only to the right of the person for whom the labor or services are provided to specify the desired results;

2. The individual or business entity providing labor or services is responsible for obtaining all assumed business registrations or professional occupation licenses required by state law or local government ordinances for the individual or business entity to conduct the business;

3. The individual or business entity providing labor or services furnishes the tools or equipment necessary for performance of the contracted labor or services;

4. The individual or business entity providing labor or services has the authority to hire and fire employees to perform the labor or services;

5. Payment for the labor or services is made upon completion of the performance of specific portions of the project or is made on the basis of an annual or periodic retainer.

____________________________________________________________________ ____________________________

Project Manager Signature Date

_____________________________________________________________________________________________________________________

SECTION C

Independent contractor certifies he/she meets the following standards:

1. The individual or business entity providing labor or services is registered under ORS Chapter 701, if the individual or business entity provides labor or services for which such registration is required;

2. Federal and state income tax returns in the name of the business or a business Schedule C or form Schedule F as part of the personal income tax return were filed for the previous year if the individual or business entity performed labor or services as an independent contractor in the previous year; and

3. The individual or business entity represents to the public that the labor or services are to be provided by an independently established business. Except when an individual or business entity files a Schedule F as part of the personal income tax returns and the individual or business entity performs farm labor or services that are reportable on Schedule C, an individual or business entity is considered to be engaged in an independently established business when four or more of the following circumstances exist. Contractor check four or more of the following:

__X___ A. The labor or services are primarily carried out at a location that is separate from the residence of an individual who performs the labor or services, or are primarily carried out in a specific portion of the residence, which portion is set aside as the location of the business;

__X__ B. Commercial advertising or business cards as is customary in operating similar businesses are purchased for the business, or the individual or business entity has a trade association membership;

__X___ C. Telephone listing and service are used for the business that is separate from the personal residence listing and service used by an individual who performs the labor or services;

__X___ D. Labor or services are performed only pursuant to written contracts;

__X___ E. Labor or services are performed for two or more different persons within a period of one year; or

__X___ F. The individual or business entity assumes financial responsibility for defective workmanship or for service not provided as evidenced by the ownership of performance bonds, warranties, errors and omission insurance or liability insurance relating to the labor or services to be provided.

____________________________________________________________________ ____________________________

Contractor Signature Date

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EXHIBIT C

INSURANCE

INSURANCE (The Project Manager must answer and initial 2, 3, and 4 below).

During the term of this contract Contractor shall maintain in force at its own expense, each insurance noted below:

1. Workers Compensation insurance in compliance with ORS 656.017, which requires subject employers to provide Oregon workers' compensation coverage for all their subject workers (contractors with one or more employees, unless exempt under ORS 656.027).

2. __X___ Required and attached or Waived by City Attorney :_______

General Liability insurance with a combined single limit of not less than $500,000 each occurrence for Bodily Injury and Property Damage. It shall include contractual liability coverage for the indemnity provided under this contract, and shall provide that City of Portland, and its agents, officers, and employees are Additional Insured but only with respect to the Contractor's services to be provided under this Contract:

3. __X___ Required and attached or Waived by City Attorney : _______

Automobile Liability insurance with a combined single limit of not less than $500,000 each occurrence for Bodily Injury and Property Damage, including coverage for owned, hired, or nonowned vehicles, as applicable:

4. _____ Required and attached or Waived by City Attorney : ___X___

Professional Liability insurance with a combined single limit of not less than $1,000,000 each claim, incident, or occurrence. This is to cover damages caused by error, omission or negligent acts related to the professional services to be provided under this contract.

5. On all types of insurance. There shall be no cancellation, material change, reduction of limits, or intent not to renew the insurance coverage(s) without 30-days written notice from the Contractor or its insurer(s) to the City.

6. Certificates of insurance. As evidence of the insurance coverages required by this contract, the Contractor shall furnish acceptable insurance certificates to the City at the time contractor returns signed contracts. The certificate will specify all of the parties who are Additional Insured and will include the 30-day cancellation clause that provides that the insurance shall not terminate or be cancelled without 30 days written notice first being given to the City Auditor. Insuring companies or entities are subject to City acceptance. If requested, complete policy copies shall be provided to the City. The Contractor shall be financially responsible for all pertinent deductibles, self-insured retentions, and/or self-insurance.

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