W&H Pacific 217 Sewer Line 1
CITY OF TIGARD, OREGON
CONTRACT FOR ENGINEERING SERVICES
THIS AGREEMENT, made and entered into this , . day off>;,`, 1998, by and between the
City of Tigard, a municipal corporation, hereinafter referred to as the "City," and W&H
Pacific, whose authorized representative is Brett Arvidson, and having a principal being a
registered engineer of the State of Oregon, hereinafter referred to as the "Engineer."
WITNESSETH:
WHEREAS, the Oregon Department of Transportation is proposing improvements to the
interchange at Interstate 5 and Highway 217 that will require the relocation of a ten-inch City
sanitary sewer, and
WHEREAS, The Highway 217 Sewer Relocation Project, has been proposed to accomplish
this relocation, and
WHEREAS, the City desires to engage the Engineer to render professional engineering
services for the project described in this Agreement, and the Engineer is willing and
qualified to perform such services.
IN CONSIDERATION of the premises and covenants contained herein, the parties hereby
agree as follows-
1.
ollows:1. Engineer's Scope of Services
The Engineer shall perform professional engineering services relevant to the Project
in accordance with the terms and conditions set forth herein, and as provided in
Exhibit I, which is attached hereto and by this reference made a part of this
Agreement.
2. Engineer's Fee
A. Basic Fee.
(1.) As compensation for Basic Services as described in Exhibit I of this
Agreement, and for services required in the fulfillment of Paragraph 1,
the Engineer shall be paid on an hourly rate based upon the "Schedule
of Rates" in Exhibit 1 of this agreement, which shall constitute full and
complete payment for said services and all expenditures which may be
made and expenses incurred, except as otherwise expressly provided
in this Agreement. The Basic Fee shall not exceed the amount of
Seven Thousand dollars ($7,000) without prior written authorization.
(2.) The parties hereto do expressly agree that the Basic Fee is based
upon the Scope of Services to be provided by the Engineer and is not
necessarily related to the estimated construction cost of the Project.
In the event that the actual construction cost differs from the estimated
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construction cost, the Engineer's compensation will not be adjusted
unless the Scope of Services to be provided by the Engineer changes
and is authorized and accepted by the City..
B. Payment Schedule for Basic Fee.
Payments shall be made upon receipt of billings based on the work
completed. Billings shall be submitted by the consultant periodically, but not
more frequently than monthly. Payment by the City shall release the City
from any further obligation for payment to the engineer for service or services
performed or expenses incurred as of the date of the statement of services.
Payment shall be made only for work actually completed as of the date of
invoice. Payment shall not be considered acceptance or approval of any
work or waiver of any defects therein.
C. Payment for Special Services.
Only when directed in writing by the City, the Engineer shall furnish or acquire
for the City the professional and technical services based on the hourly rate
schedule as described in Exhibit I of this contract for minor project additions
and/or alterations.
D. Certified Cost Records.
The Engineer shall furnish certified cost records for all billings pertaining to
other than lump sum fees to substantiate all charges. For such purposes, the
books of account of the Engineer shall be subject to audit by the City. The
Engineer shall complete work and cost records for all billings on such forms
and in such manner as will be satisfactory to the City.
E. Contract Identification
The Engineer shall furnish to the City its employer identification number, as
designated by the Internal Revenue Service, or Social Security Number, as
the City deems applicable.
F. Payment - General
(1.) Engineer shall pay to the Department of Revenue all sums withheld
from employees pursuant to ORS 316.167.
(2.) Engineer shall pay employees at least time and a half pay for all
overtime worked in excess of 40 hours in any one week except for
individuals under the contract who are excluded under ORS 653.010
to 653.261 or under 29 USC sections 201 to 209 from receiving
overtime.
(3.) Engineer shall 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
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sickness or injury to the employees of Engineer or all sums which
Engineer agrees to pay for such services and all moneys and sums
which Engineer collected or deducted from the wages of employees
pursuant to any law, contract or agreement for the purpose of
providing or paying for such service.
(4.) The City certifies that sufficient funds are available and authorized for
expenditure to finance costs of this contract.
3. Ownership of Plans and Documents: Records
A. The field notes, design notes, and original drawings of the construction plans,
as instruments of service, are and shall remain, the property of the Engineer;
however, the City shall be furnished, at no additional cost, one set of
reproducible mylar of the original drawings of the work.
B. The City shall make copies, for the use of and without cost to the Engineer, of
all of its maps, records, laboratory tests, or other data pertinent to the work to
be performed by the Engineer pursuant to this Agreement, and also make
available any other maps, records, or other materials available to the City
from any other public agency or body.
C. The Engineer shall furnish to the City, copies of all maps, records, field notes,
and soil tests which were developed in the course of work for the City and for
which compensation has been received by the Engineer at no additional
expense to the City except as provided elsewhere in this Agreement.
4. Engineer is Independent Contractor
A. Engineer's services shall be provided under the general supervision of City's
project director or his/her designee, but Engineer shall be an independent
contractor for all purposes and shall be entitled to no compensation other
than the compensation provided for under Section 3 of this Agreement.
B. In the event Engineer is to perform the services described in this Agreement
without the assistance of others, Engineer hereby agrees to file a joint
declaration with City to the effect that Engineer's services are those of an
independent contractor, as provided under Chapter 864 Oregon Laws 1979.
C. Engineer acknowledges that for all purposes related to this agreement,
Engineer is and shall be deemed to be an independent contractor and not an
employee of City, shall not be entitled to benefits of any kind to which an
employee of the City is entitled and shall be solely responsible for all
payments and taxes required by law. Furthermore, in the event that Engineer
is found by a court of law or an administrative agency to be an employee of
the City for any purpose, City shall be entitled to offset compensation due, or
to demand repayment of any amounts paid to Engineer under the terms of
the agreement, to the full extent of any benefits or other remuneration
Engineer receives (from City or third party) as a result of said finding and to
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the full extent of any payments that City is required to make (to Engineer or to
a third party) as a result of said finding.
D. The undersigned Engineer 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 the Engineer, either
directly or indirectly, in connection with the letting or performance of this
Agreement, except as specifically declared in writing.
E. If this payment is to be charged against Federal funds, Engineer certifies that
he/she is not currently employed by the Federal Government and the amount
charged does not exceed his/her normal charge for the type of service
provided.
F. Engineer 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.
G. Engineer certifies that it currently has a City of Tigard business license or will
obtain one prior to delivering services under this Agreement.
H. Engineer is not an officer, employee, or agent of the City of Tigard as those
terms are used in ORS 30.265.
5. Indemnity
The City has relied upon the professional ability and training of the Engineer as a
material inducement to enter into this Agreement. Engineer warrants that all 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 an Engineer's work by the City sh;11n t
operate as a waiver or release.
TFC �7c�—rJ� � ,
^En sneer agrees to ndemnify and defend the City, its offers, agents and employees
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
costs and (at both trial and appeal level, whether or not a trail or appeal ever takes
place) that may be asserted by_any.pers% 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 shall also cover claims brought against the City under state or federal
worker's compensation laws. If any aspect of this indemnity shall be found to be illegal
or invalid for any reason whatsoever, such illegality or invalidity shall not affect the
validity of the remainder of this indemnification.
6. Insurance
Engineer and its subcontractors shall maintain insurance acceptable to City in full force
and effect throughout the term of this contract. Such insurance shall cover all risks
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arising directly or indirectly out of Engineer's activities or work hereunder, including the
operations of its subcontractors of any tier. Such insurance shall include provisions
that such insurance is primary insurance with respect to the interests of City and that
any other insurance maintained by City is excess and not contributory insurance with
the insurance required hereunder.
A. Commercial Automobile Insurance
Engineer shall also obtain, at engineer's expense, and keep in effect during
the term of the contract, "Symbol 1" Commercial Automobile Liability
coverage including coverage for all owned, hired, and non-owned vehicles.
The Combined Single Limit per occurrence shall not be less than $1,000,000.
B. Workers' Compensation Insurance
The Engineer, its subcontractors, if any, and all employers providing work,
labor or materials under this Contract are subject employers under the
Oregon Workers' Compensation Law and shall 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.
Engineers who perform work without the assistance or labor of any employee
need not to obtain such coverage. This shall include Employer's Liability
Insurance with coverage limits of not less than $100,000 each accident.
C. Notice of Cancellation
There shall be no cancellation, material change, exhaustion of aggregate
limits or intent not to renew insurance coverage without 30 days written notice
to the City. Any failure to comply with this provision will not affect the
insurance coverage provided to the City. The 30 days notice of cancellation
provision shall be physically endorsed on to the policy.
D. Insurance Carrier Rating
Coverages provided by the Engineer must be underwritten by an insurance
company deemed acceptable by the City. The City reserves the right to
reject all or any insurance carrier(s) with an unacceptable financial rating.
E. Certificates of Insurance
As evidence of the insurance coverage required by the contract, the
contractor shall furnish a Certificate of Insurance to the City. No contract
shall be effected until the required certificates have been received and
approved by the City. The certificate will specify and document all provisions
within this contract. A renewal certificate will be sent to the address below
ten days prior to coverage expiration.
F. Independent Contractor Status
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The service or services to be rendered under this contract are those of an
independent contractor. Engineer is not an officer, employee or agent of the
City as those terms are used in ORS 30.265.
7. Termination Without Cause:
At any time and without cause, City shall have the right in its sole discretion, to
terminate this Agreement by giving notice to Engineer. If City terminates the contract
pursuant to this paragraph, it shall pay Engineer for services rendered to the date of
termination.
8. Termination With Cause:
A. City may terminate this Agreement effective upon delivery of written notice to
Engineer, or at such later date as may be established by City, under any of
the following conditions:
(1.) 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
(2.) 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 Agreement.
(3.) If any license or certificate required by law or regulation to be held by
Engineer, its subcontractors, agents, and employees to provide the
services required by this Agreement is for any reason denied, revoked,
or not renewed.
(4.) If Engineer becomes insolvent, if voluntary or involuntary petition in
bankruptcy is filed by or against Engineer, if a receiver or trustee is
appointed for Engineer, or if there is an assignment for the benefit of
creditors of Engineer.
Any such termination of this agreement under paragraph (a) shall 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 Engineer,
may terminate the whole or any part of this Agreement:
(1.) If Engineer fails to provide services called for by this agreement within
the time specified herein or any extension thereof, or
(2.) If Engineer fails to perform any of the other provisions of this
Agreement, or so fails to pursue the work as to endanger performance
of this agreement in accordance with its terms, and after receipt of
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written notice from City, fails to correct such failures within ten days or
such other period as City may authorize.
(3.) If Engineer fails to eliminate a conflict as described in Section 12 of
this agreement.
The rights and remedies of City provided in the above clause related to
defaults (including breach of contract) by Engineer shall not be 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), Engineer shall be
entitled to receive as full payment for all services satisfactorily rendered and
expenses incurred, an amount which bears the same ratio to the total fees
specified in this Agreement as the services satisfactorily rendered by
Engineer bear to the total services otherwise required to be performed for
such total fee; provided, that there shall be deducted from such amount the
amount of damages, if any, sustained by City due to breach of contract by
Engineer. Damages for breach of contract shall be those allowed by Oregon
law, reasonable and necessary attorney fees, and other costs of litigation at
trial and upon appeal.
9. Non-Waiver:
The failure of City to insist upon or enforce strict performance by Engineer 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.
10. Method And Place Of Giving Notice, Submitting Bills And Making Payments.
All notices, bills and payments shall be made in writing and may be given by personal
delivery or by mail. Notices, bills and payments sent by mail should be addressed as
follows:
CITY OF TIGARD
Greg N. Berry, Utilities Engineer
13125 SW Hall Blvd.
Tigard, Oregon 97223
ENGINEER
W&H Pacific
8405 SW Nimbus Avenue
Beaverton OR 97008-7120
and when so addressed, shall be deemed given upon deposit in the United States
mail, postage prepaid. In all other instances, notices, bills and payments shall be
deemed given at the time of actual delivery. Changes may be made in the names and
addresses of the person to whom notices, bills and payments are to be given by giving
written notice pursuant to this paragraph.
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11. 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 shall be effective
unless and until it is made in writing and signed by both parties.
12. Professional Services:
The City requires that services provided pursuant to this agreement shall be provided
to the City by a Engineer which does not represent clients on matters contrary to City
interests. Further, Engineer shall not engage services of an attorney and/or other
professional who individually, or through members of his/her same firm, represents
clients on matters contrary to City interests.
Should the Engineer represent clients on matters contrary to City interests or engage
the services on an attorney and/or other professional who individually, or through
members of his/her same firm, represents clients on matters contrary to City interests,
Engineer shall consult with the appropriate City representative regarding the conflict.
After such consultation, the Engineer shall have 14 days to eliminate the conflict to the
satisfaction of the City If such conflict is not eliminated within the specified time period,
the agreement may be terminated pursuant to Section 8 (B - 3) of this agreement.
13. Force Majeure:
Neither City nor Engineer shall 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, epidemic, quarantine restriction, area-wide strike, freight embargo, unusually
severe weather or delay of subcontractor or supplies due to such cause; provided that
the parties so disenabled shall within ten days from the beginning of such delay, notify
the other party in writing of the cause of delay and its probable extent. Such
notification shall not be the basis for a claim for additional compensation. Each party
shall, however, make all reasonable efforts to remove or eliminate such a cause of
delay or default and shall, upon cessation of the cause, diligently pursue performance
of its obligation under the Agreement.
14. Non-Discrimination.-
Engineer
on-Discrimination:Engineer agrees to comply with all applicable requirements of federal and state civil
rights and rehabilitation statues, rules, and regulations. Engineer also shall comply
with the Americans with Disabilities Act of 1990, ORS 659.425, and all regulations and
administrative rules established pursuant to those laws.
15. Errors:
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Engineer shall 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.
16. Extra (Changes) Work-
Only the City Engineer may authorize extra (and/or changes) work. Failure of
Engineer to secure authorization for extra work shall constitute a waiver of all right to
adjustment in the contract price or contract time due to such unauthorized extra work
and Engineer thereafter shall be entitled to no compensation whatsoever for the
performance of such work.
17, Governing Law:
The provisions of this Agreement 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 Agreement must be brought in the appropriate court of the State of Oregon.
18. Compliance With Applicable Law:
Engineer shall comply with all federal, state, and local laws and ordinances applicable
to the work under this Agreement, including those set forth in ORS 279.310 to
279.320.
19. Conflict Between Terms:
It is further expressly agreed by and between the parties hereto that should there be
any conflict between the terms of this instrument in the proposal of the contract, this
instrument shall control and nothing herein shall be considered as an acceptance of
the said terms of said proposal conflicting herewith.
20. Audit:
Engineer shall 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. Engineer 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.
21. 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 remainder of this Agreement shall
remain in full force and effect and shall in no way be affected or invalidated thereby.
22. Complete Agreement:
This Agreement and attached exhibits constitutes the entire Agreement between the
parties. No waiver, consent, modification, or change of terms of this Agreement shall
bind either party unless in writing and signed by both parties. Such waiver, consent,
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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 Agreement. Engineer, by the
signature of its authorized representative, hereby acknowledges that he has read this
Agreement, understands it and agrees to be bound by its terms and conditions.
IN WITNESS WHEREOF, City has caused this Agreement to be executed by its duly
authorized undersigned officer and Engineer has executed this Agreement on the date
hereinabove first written.
CITY OF TIGARD
By: A u tin P. Duenas, City Engineer
Date:' H i S
ENGINEER,," 0e,C-- J C
By:
(Type in Firm's Name)
CL e, /
Print N me
Date:
j tengtcont-es dot
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EXHIBIT I
Duty of Engineer
A. Basic Services: The Engineer shall render professional engineering services as
described in the attached proposal dated July 14, 1998, titled "Highway 217 Sewer
relocation".
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PAC I C
8405 S.W. Nimbus Avenue
Beaverton,OR 97008-7120
July 14, 1998 ,�� '-
�3F. TtGARD
Greg Berry
City of Tigard
13125 S.W. Hall Blvd.
Tigard, Oregon 97223 .
Re: Engineering Proposal for Highway 217 Sewer Relocation
W&HP File No.: 4-1998-2499
Dear Greg:
As per your request, W&H Pacific has prepared a proposal to design the relocation of the
sanitary sewer underneath Highway 217 to accommodate the new interchange under design by
the Oregon Department of Transportation (ODOT). The City of Tigard has a 10-inch sewer that
crosses under Highway 217, then parallels the right of way for approximately 400 feet. This
pipe, located in an easement, must be relocated to allow for new retaining wall structures
proposed by ODOT. Since this sewer is outside of the highway right of way, ODOT will pay
engineering fees and construct the sewer relocation as part of the interchange project.
W&H Pacific will provide engineering services for this sewer relocation. W&H Pacific will
coordinate with ODOT and provide drawings and specifications for inclusion into the ODOT
contract package.
Scope of Work
Our scope of work includes:
1. Initial Meeting with ODOT
W&H Pacific will meet with ODOT representatives to determine the technical requirements for
the Project. These technical requirements include dimensions of structures, horizontal and
vertical alignments, and other conflicting utilities.
2. Prepare Design Memo
A conceptual design concept will be prepared based upon the technical requirements imposed by
ODOT. This conceptual design will outline the horizontaUvertical alignment of the pipeline, the
easement requirements to access the pipeline, utility conflicts, staging requirements, dimensions
(503) 626-0455 Fax (503) 526-0775 Planning - Engineering - Surveying - Landscape Architecture
Greg Berry
July 14, 1998
Page 2 of 3
of appurtenant structures such as manholes, and other criteria that impact the project. A design
memo will be prepared documenting the proposed concept. This memo will be presented to
Tigard and ODOT for concurrence.
3. Prepare Drawings and Specifications
After acceptance of the design concept, W&H Pacific will prepare plans and specifications for
the project. The plans will consist of one plan and profile sheet and one detail sheet. Technical
specifications will prepared in a format to amend the ODOT Standard Specifications, if
necessary. The plans and specifications will be formatted for inclusion into the ODOT
construction documents. The plans and specifications will be prepared understanding that
ODOT, City of Tigard and the Unified Sewerage Agency have review authority. The drawings
will be produced on a Microstation CADD station and then eventually translated into AutoCAD
for Tigard Record Drawings.
4. Meet With ODOT and City of Tigard
W&H Pacific will meet with ODOT and Tigard at the approximate 50% and 95% completion
points to discuss progress of the work and to incorporate reviewer comments.
5. Cost Estimate
At the time of advertising, the project for bid, W&H Pacific will prepare an option of estimated
cost for the sewer relocation project.
Proposal Assumptions
The following assumptions were made in preparing this proposal.
1. W&H Pacific will utilize ODOT base maps for preparation of plan and profile sheets.
2. W&H Pacific will not provide surveying, Geotechnical, bid period, or construction period
services as part of this project.
3. W&H Pacific will not undertake utility research for this project, but rely on the ODOT
utility coordination efforts in ascertaining utility conflicts for this project.
4. W&H Pacific will not prepare easement descriptions or provide right of way acquisition
services.
5. General conditions for this project will be prepared by ODOT.
Contract Forms
The contract form for these services will be the City of Tigard form provided to W& Pacific.
W&H Pacific will sign the consultant certification form provided.
Greg Berry
July 14, 1998
Page 3 of 3
Schedule
The current ODOT schedule indicates opening bids in early March with preliminary engineering
completed in November. In order to efficiently coordinate with this schedule, W&H Pacific
proposes the following milestone dates.
Completion of Design Memo Three weeks after notice to proceed
Completion of Plans and Specifications January 8, 1999
Fee Estimate
As compensation for the above scope of services, W&H Pacific requests a not to exceed amount
of$7,000.00. Services will be billed on time and materials basis using the attached fee schedule.
I hope the above proposal meets your approval. If you have any questions, please don't hesitate
to call.
Sincerely,
W&H PACIFIC, INC.
Brett Arvidson, P.E.
Project Manager
BA/vlw
enclosure
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