City Auditor - City Recorder - Council Ordinance - 179862 Counterpoint Consulting contract

SHORT TITLE OF WORK PROJECT: NPDES MS4 and UIC Permit Assistance and Technical Writing

This contract is between the City of Portland, acting by and through its Elected Officials, hereafter called "City," and Counterpoint Consulting, hereafter called Contractor. The City's Project Manager for this contract is Amber Clayton.

This contract shall become effective on December 28^th, 2005 (or on the date at which every party has signed this contract, whichever is later.) This contract shall expire, unless otherwise terminated or extended, on December 28^th, 2006. The City may within its sole discretion extend the term of this contract for four (4) one-year periods. Written notification of the City’s intent to exercise an option must be submitted to Contractor no later than 60 days from contract expiration. The City’s failure to provide timely notice will result in contract expiration.

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

(a) City agrees to pay Contractor a sum not to exceed $95,000 per year, or a total of $475,000 over five years, for accomplishment of the work.

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

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Federal Tax ID #: ______________________ State Tax ID #: ______________________ Business License # __377136_______

Business Designation (check one): ____ Individual __ X__ Sole Proprietorship ____ Partnership ____ 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: _______________________________________ _____________________

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

Approved by City Auditor: _______________________________________________________

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.

(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.

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.

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

(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.

(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.

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

(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.

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.

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.

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.

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.

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.

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

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.

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.

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.

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.

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.

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.

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.

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. Additionally, the Contractor shall pay all fees or taxes due under the Business License Law and the Multnomah County Business Income Tax (MCC Chapter 12) during the full term of this contract. Failure to be in compliance may result in payments due under this contract to be withheld to satisfy amount due under the Business License Law and the Multnomah County Business Income Tax Law.

(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.

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.

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. Arbitration: /_ X_/ Not Applicable /___/ Applicable (consult with City Attorney’s Office before finalizing as applicable)

(a) Any dispute arising out of or in connection with this Agreement, which is not settled by mutual agreement of the Contractor and the City within sixty (60) days of notification in writing by either party, shall be submitted to an arbitrator mutually agreed upon by the parties. In the event the parties cannot agree on the arbitrator, then the arbitrator shall be appointed by the Presiding Judge (Civil) of the Circuit Court of the State of Oregon for the County of Multnomah. The arbitrator shall be selected within thirty (30) days from the expiration of the sixty (60) day period following notification of the dispute. The arbitration, and any litigation arising out of or in connection with this Agreement, shall be conducted in Portland, Oregon, shall be governed by the laws of the State of Oregon, and shall be as speedy as reasonably possible. The applicable arbitration rules for the Multnomah County courts shall apply unless the parties agree in writing to other rules. The arbitrator shall render a decision within forty-five (45) days of the first meeting with the Contractor and the City. Insofar as the Contractor and the City legally may do so, they agree to be bound by the decision of the arbitrator.

(b) Notwithstanding any dispute under this Agreement, whether before or during arbitration, the Contractor shall continue to perform its work pending resolution of a dispute, and the City shall make payments as required by the Agreement for undisputed portions of work.

The Contractor shall provide monthly progress reports to the Project Manager. If applicable, Exhibit A should list what information the Contractor must include in monthly progress reports.

The Contractor shall assign the following personnel to do the work in the capacities designated: If applicable, list selected personnel in Exhibit A.

The City holds a Municipal Separate Storm Sewer System (MS4) NPDES permit with co-permittees Multnomah County and the Port of Portland. Under the permit, the City is required to inform, engage, educate, and involve the public in implementation and assessment of the City’s NPDES stormwater program. Public involvement and education programs are an emphasized requirement for stormwater NPDES programs and integral elements of many of the Best Management Practices (BMPs). Counterpoint Consulting will assist the City with coordination among NPDES co-permittees, City Bureaus, citizen advisory committees and other stakeholders. In addition, Counterpoint Consulting will assist with the preparation of required compliance reports, BMP-related technical design manuals, and other guidance materials.

The City has recently been issued a ten-year municipal Water Pollution Facility Control (WPFC) Permit for its 8,500 publicly owned Underground Injection Control Structures (UICs). Under the Permit, the City is required to develop and implement a UIC Management Plan, an Operation and Maintenance Plan,Stormwater Discharge Monitoring Plan, a Sampling Analysis Plan, a Quality Assurance Project Plan, a Corrective Action Plan, and a BMP Effectiveness and Monitoring Plan. Counterpoint Consulting will assist the city with development of these plans and required compliance reports and other guidance materials.

Coordination among NPDES co-permittees, City Bureaus, citizen advisory committees, and other stakeholders is a key component in meeting the City’s permit requirements. Tasks to be preformed by Counterpoint Consulting include:

A. Preparation, facilitation, minutes for up to 13 NPDES co-permittee meetings per year

B. Preparation, facilitation, and minutes for up to 20 meetings with internal and external stakeholders working to develop plans required by the WPCF Permit.

C. Recording for up to 12 Stormwater Advisory Committee (SAC) meetings per year, assistance with pre-meeting preparation, and preparation of meeting materials.

E. Preparation, facilitation, and recording for up to 12 NPDES Education Advisory Committee meetings per year to develop approaches for stormwater curriculum.

F. Preparation, facilitation, and recording for up to 12 WPCF Bureau Representative meetings per year.

G. Preparation, facilitation, and recording for other City meetings upon request.

The preparation of informational materials, reports, and guidance documents is a required element of NPDES and WPCF permit compliance. Schedules for completion of each deliverable will be determined on a document-by-document basis upon task approval by the City. Counterpoint Consulting will:

A. Compile, organize, and prepare information for the City's annual NPDES stormwater permit compliance report annually on November 1 to the Oregon Department of Environmental Quality.

B. Assist with development/revision of Stormwater Management Plan BMPs and Interim Evaluation Report materials for submittal to DEQ by May 1, 2006.

C. Assist with compilation, editing, and preparation of NPDES permit renewal submittal in 2007-2008.

D. Assist with Stormwater Management Manual revisions (by 2007 and every three years thereafter)

E. Develop technical and informational documents required by the WPCF Permit shown in Table 1 below.

Plan/Report	Date of Submittal
UIC System Assessment Report	July 15, 2006
UIC Corrective Action Plan	July 15, 2006
UIC Management Plan	July 15, 2006
UIC Operations and Maintenance Plan	July 15, 2006
UIC BMP Monitoring Plan	July 15, 2006
UIC Spill Prevention Plan	July 15, 2006
UIC Monitoring Report	Annually on July 15
UIC SDMP Revisions	Annually on July 15
UIC Annual Report	Annually on December 1

F. Assist with other reports, fact sheets, minutes or technical memorandum as requested by BES.

G. Develop public involvement/information/education materials, and activities, including informational fact sheets or other materials as requested by BES.

Contractor shall be compensated for services performed at a rate of $90 per hour. Task budgets for the first contract year are shown in Table 2. All incidentals such as coping, fax, and postage shall be reimbursed at cost. Total compensation for each calendar year shall not exceed $95,000.

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_______________________

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.

____________________________________________________________________ ____________________________

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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:

_____ 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;

_____ 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;

_____ 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;

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

_____ 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.

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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).

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:

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:

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.

Task	Year One Task Budget
1. Meeting-Related Services A. Prepare for, facilitate, and record minutes for a maximum of 13 co-permittee meetings* B. Prepare for, facilitate, and record minutes for a maximum of 20 stakeholder meetings for WPCF permit plan development C. Prepare for and record minutes for a maximum of 12 Stormwater Advisory Committee (SAC) meetings (includes preparation of meeting materials). D. Minutes and preparation for up to 12 SAC sub-committee meetings E. Prepare for and record minutes for a maximum of 12 NPDES Education Advisory Committee meetings F. Prepare for, facilitate, and record minutes for up to 12 WPCF bureau representative meetings	$4,500 7,300 7,500 3,600 3,600 3,600
Task 1 Subtotal	30,100
2. Document and Materials Preparation A. Compile, organize, and edit the Annual NPDES stormwater permit compliance report due November 1* B. Assist with revision of Stormwater Management Plan BMPs and development of the Interim Evaluation Report materials for submittal to DEQ by May 1, 2006* C. FY07-08 action D. FY07-08 action E. Develop documents required by the WPCF Permit: ▪ UIC System Assessment Report ▪ UIC Corrective Action Plan ▪ UIC Management Plan ▪ UIC Operations and Maintenance Plan ▪ UIC BMP Monitoring Plan ▪ UIC Spill Prevention Plan ▪ UIC Monitoring Report ▪ UIC SDMP Revisions ▪ UIC Annual Report	$ 3,800 8,200 NA NA 52,900
Task 2 Subtotal	64,900
Total	95,000