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CH2M Hill Inc. - Water System Vulnerability Assessment 5-?o-&.2 70 -7550DG2 CITY OF TIGARD, OREGON PERSONAL SERVICES AGREEMENT CONSULTANT SERVICES- WATER SYSTEM VULNERABILITY ASSESSMENT THIS AGREEMENT made and entered into this-t9-21tay of July, 2003 by and between the CITY OF TIGARD, a municipal corporation of the State of Oregon, hereinafter called City, and CH2M HILL. Inc.hereinafter called Consultant.. RECITALS WHEREAS, City has need for the services of a company with a particular training, ability, knowledge, and experience possessed by Consultant; and WHEREAS, City has determined that Consultant 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: 1. SERVICES TO BE PROVIDED Consultant shall initiate services immediately upon receipt of City's notice to proceed, together with an executed copy of this Agreement. Consultant agrees to complete work that is detailed in Exhibit"A" and by this reference made a part hereof. 2. EFFECTIVE DATE AND DURATION This Agreement shall become effective upon the date of execution, and shall expire, unless otherwise terminated or extended, on December 1, 2003. All work under this Agreement shall be completed prior to the expiration of this Agreement. 3. COMPENSATION City agrees to pay Consultant a total not to exceed THIRTY SEVEN THOUSAND FIVE HUNDRED AND N0/100 DOLLARS ($37,500.00) for performance of those services described herein,which payment shall be based upon the following applicable terms: a. Payment by City to Consultant for performance of services under this Agreement includes all expenses incurred by Consultant, with the exception of expenses, if any identified in this Agreement as separately reimbursable. b. Payment will be made in installments based on Consultant's invoice, subject to the approval of the City Manager, and not more frequently than monthly. Payment shall be made only for work actually completed as of the date of invoice. C. Payment by City shall release City from any further obligation for payment to Consultant, for services performed or expenses incurred as of the date of the invoice. Payment shall not be considered acceptance or approval of any work or waiver of any defects therein. d. Consultant shall make payments promptly, as due, to all persons supplying labor or materials for the prosecution of this work. . 1 e. Consultant shall not permit any lien or claim to be filed or prosecuted against the City on any account of any labor or material furnished. f. Consultant shall pay to the Department of Revenue all sums withheld from employees pursuant to ORS 316.167. g. If Consultant fails, neglects or refuses to make prompt payment of any claim for labor or services furnished to Consultant 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-Consultant. The payment of the claim in this manner shall not relieve Consultant or their surety from obligation with respect to any unpaid claims. h. Consultant 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. i. Consultant 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 sickness or injury to the employees of Consultant or all sums which Consultant agrees to pay for such services and all moneys and sums which Consultant 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. j. The City certifies that sufficient funds are available and authorized for expenditure to finance costs of this contract. 4. OWNERSHIP OF WORK PRODUCT City shall be the owner of and shall be entitled to possession of any and all work products of Consultant which result from this Agreement, including any computations, plans, correspondence or pertinent data and information gathered. by or computed by Consultant prior to termination of this Agreement by Consultant or upon completion of the work pursuant to this Agreement. 5. ASSIGNM ENUDELEGATION Neither party shall assign, sublet or transfer any interest in or duty under this Agreement without the written consent of the other and no assignment shall be of any force or effect whatsoever unless and until the other party has so consented. If City agrees to assignment of tasks to a subcontract, Consultant shall be fully responsible for the acts or omissions of any subcontractors and of all persons employed by them, and neither the approval by City of any subcontractor nor anything contained herein shall be deemed to create any contractual relation between the subcontractor and City. 6. STATUS OF CONTRACTOR AS INDEPENDENT CONTRACTOR Consultant certifies that: a. Consultant acknowledges that for all purposes related to this Agreement,Consultant is and shall be deemed to be an independent contractor as defined by ORS 670.700 and not an employee of City, shall not be entitled to benefits of any kind to which an employee of City is entitled and shall be solely responsible for all payments and taxes required by law. Furthermore, in the event that Consultant is found by a court of law or any administrative agency to be an employee of City for any purpose, City shall be entitled to offset compensation due, or to demand repayment of any amounts paid to Consultant under the terms of this Agreement;to the full extent of any benefits or other remuneration Consultant 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 Consultant or to a third party) as a result.of said finding. b. The undersigned Consultant 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 Consultant, 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, Consultant certifies that he or 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. Consultant 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. C. Consultant certifies that it currently has a City business license or will obtain one prior to delivering services under this Agreement. d. Consultant is not an officer, employee, or agent of the City as those terms are used in ORS 30.265. - 7. INDEMNMCA'TION Consultant agrees to indemnify, defend and hold harmless the City for all liability arising from actions, suits, claims or demands attributable solely and exclusively to acts or omissions of Consultant,in performance of this agreement. City agrees to indemnify, defend and hold harmless the Consultant for all liability arising from actions, suits,claims or demands attributable solely and exclusively to acts or omissions of City, in performance of this agreement. 8. INSURANCE Consultant 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 arising directly or indirectly out of Consultant's activities or work hereunder, including the operations of its subcontractors of any tier. The policy or policies of insurance maintained by the Consultant and its subcontractor shall provide at least the following limits and coverages: a. Commercial General Liability Insurance Consultant shall 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 (1996 ISO or equivalent). This coverage shall include Contractual Liability insurance for the indemnity provided under this contract. The following insurance will be carried: Coverage Limit General Aggregate 2,000,000 Products-Completed Operations Aggregate 1,000,000 Personal & Advertising Injury 1,000,000 Each Occurrence 1,000,000 Fire Damage (Any one fire) 50,000 Medical Expense (Any one person) 5,000 Employers Liability 500,000 b. Commercial Automobile Insurance Consultant shall also obtain, at contractor's expense, and keep in effect during the term of the contract, 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. C. Workers' Compensation Insurance The Consultant, its subcontractors, if any, and all employers providing work, labor or materials under this Contract that are either 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 or employers that are exempt under ORS 656.126. 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 such coverage. This shall include Employer's Liability Insurance with coverage limits of not less than $500,000 each accident. d. Additional Insured Provision The Commercial General Liability Insurance and Commercial Automobile Insurance policies and other policies the City deems necessary shall include the City, its officers, directors, and employees as additional insureds with respect to this contract. e. 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. f. Insurance Carrier Rating Coverages provided by the Consultant 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. g. Certificates of Insurance As evidence of the insurance coverage required by the contract, the Consultant 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 above address 10 days prior to coverage expiration. h. Independent Contractor Status The service or services to be rendered under this contract are those of an independent contractor. Consultant is not an officer, employee or agent of the City as those terms are used in ORS 30.265. i. Primary Coverage Clarification The parties agree that Consultant's coverage shall be 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. J. Cross-Liability Clause 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 contract. Consultant's insurance policy shall contain provisions that such policies shall not be canceled or their limits of liability reduced without thirty (30) days prior notice to City. A copy of each insurance policy, certified as a true copy by an authorized representative of the issuing insurance company, or at the discretion of City, in lieu thereof, a certificate in form satisfactory to City certifying to the issuance of such insurance shall be forwarded to: City of Tigard Dennis Koellermeier,Asst. Public Works Director 13125 SW Hall Blvd. Tigard, Oregon 97223 Such policies or certificates must be delivered prior to commencement of the work. The procuring of such required insurance shall not be construed to limit contractor's liability hereunder. Notwithstanding said insurance,Consultant shall be obligated for the total amount of any damage, injury,or loss caused by negligence or neglect connected with this contract. 9. METHOD OF GIVING NOTICE,SUBMITTING BILLS &MAKING PAYMENTS All notices, bills and payments shall be made in writing and may be given by personal delivery, mail or fax. Payments may be made by personal delivery, mail, or electronic transfer. The following addresses shall be used to transmit notices,bills,payments, and other information: CITY OF TIGARD (CITY) Dennis Koellermeier,Asst. Public Works Director Business Phone: (503)-639-4171 Ext.2596 13125 SW Hall Blvd. Business Fax: (503) 684-8840 Tigard,Oregon 97223 Email Address: dennis@ci.tigard.or.us CH2M HILL (CONSULTANT) Dave Mustonen, Project Manager Business Phone: (503) 235-5000 925 NE Multnomah, Suite 1300 Business Fax: (503)736-2000 Portland,Oregon 97232 Email Address: dmustone@ch2m.com 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. 10. NIERGER 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. 11. PROFESSIONAL SERVICES The City requires that services provided pursuant to this agreement shall be provided to the City by a Consultant which does not represent clients on matters contrary to City interests. Further, Contractor 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 Consultant 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, Consultant shall consult with the appropriate City representative regarding the conflict. After such consultation, the Consultant shall have fifteen (15) days to eliminate the conflict to the satisfaction of the City. If such conflict is not eliminated within the specified period, the agreement may be terminated pursuant to of this Agreement. 12. 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 Consultant. If City terminates the contract pursuant to this paragraph,it shall pay Consultant for services rendered to the date of termination. 13. TERMINATION WITH CAUSE: a. City may terminate this Agreement effective upon delivery of written notice to Consultant, 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. 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 Agreement. iii. If any license or certificate required by law or regulation to be held by Consultant, its subcontractors, agents, and employees to provide the services required by this Agreement is for any reason denied, revoked,or not renewed. iv. If Consultant becomes insolvent, if voluntary or involuntary petition in bankruptcy is filed by or against Consultant, if a receiver or trustee is appointed for Consultant, or if there is an assignment for the benefit of creditors of Consultant. 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 Consultant, may terminate the whole or any part of this Agreement: i. If Consultant fails to provide services called for by this agreement within the time specified herein or any extension thereof, or ii. If Consultant 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 written notice from City, fails to correct such failures within ten (10) days or such other period as City may authorize. iii. If Consultant fails to eliminate a conflict as described in Section 11 of this agreement. The rights and remedies of City provided in the above clause related to defaults (including breach of contract) by Consultant 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), Consultant 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 Consultant 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 Consultant. 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. 14. ACCESS TO RECORDS City shall have access to such books, documents, papers and records of Consultant as are directly pertinent to this Agreement for the purpose of making audit,examination,excerpts and transcripts. 15. FORCE MAJEURE Neither City nor Consultant 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(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 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. 16. NON-WAIVER The failure of City to insist upon or enforce strict performance by Consultant 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. 17. NON-DISCRIMINATION Consultant agrees to comply with all applicable requirements of federal and state civil rights and rehabilitation statues, rules, and regulations. Consultant 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. 18. ERRORS Consultant 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. 19. EXTRA (CHANGES)WORK Only the City's Contract Administrator may.authorize extra (and/or changes) work. Failure of Consultant 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 Consultant thereafter shall be entitled to no compensation whatsoever for the performance of such work. 20. ATTORNEYS FEES In case suit or action is instituted to enforce the provisions of this contract, the parties agree that the losing party shall pay such sum as the court may adjudge reasonable attorney fees and court costs, including attorney's fees and court costs on appeal. 21. 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. 22. COMPLIANCE WITH APPLICABLE LAW Consultant 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. 23. 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. 24. AUDIT Consultant 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. Consultant 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. 25. 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 shall not be affected to the extent that it did not materially affect the intent of the parties when they entered into the agreement. 26. 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,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. Consultant, 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 Consultant has executed this Agreement on the date hereinabove first written. CITY OF TIGARD Approved by Tigard's Local Contract Review Board on: �� b3 By: William A.Monahan,City Manager Date' CONTRACTOR L�/Zh/ 11f1— !,Ole Company Name Print Name&Title of Authorized Representative 2- 103 . By: Sign Name Date ExHmIT"A" SERVICES TO BE PROVIDED The general scope of this project is to conduct a vulnerability assessment (V/A) of the City of Tigard's (City's) water system to determine how the City might be susceptible to intentional attach, sabotage, vandalism, or other malevolent acts. The V/A needs to incorporate the following major elements and processes: A. DETERMINATION OF WATER SYSTEM OBJECTIVES 1. Identify the important missions/functions of the City's system; 2. Identify the undesirable consequences that could affect the missions/functions; 3. Determine the assets that need to be protected to minimize the impact of the undesirable events/consequences; and 4. -- Determine the malevolent acts that could reasonably cause these events/consequences. B. PRIORITIZATION OF ADVERSE EVENTS/CONSEQUENCES AFFECTING THE WATER SYSTEM AND THE SURROUNDING COMMUNITY Events/Consequences include: 1. Loss of critical function and/or major service disruption; and 2. Intentional attack on public safety via the City's water system assets, contamination of the water supply, and chemical releases or chemical theft. C. DEFINE HOW THE MALEVOLENT ACTS MIGHT BE CONDUCTED Possible malevolent acts may include: 1. Physical damage; 2. Chemical,biological, and radiological contamination; 3. Cyber attacks on the Supervisory Control and Data Acquisition (SCADA) or other process control system; and 4. Interdependency disruptions (e.g. electrical,transportation, etc.) D. LIKELIHOOD ASSESSMENT An assessment of the likelihood (qualitative probability) of such malevolent acts from defined threat sources such as terrorists, insiders, determined vandals, casual vandals, and others. E. SITE CHARACTERIZATION A systematic site characterization of the City's water system including the collection of performance data on: 1. Important facilities, processes, and assets; 2. Physical protection system features of deterrence, detection, delay, and response; 3. Cyber function features; and 4. Security policies and procedures and compliance with same. y F. PERFORMANCE-BASED APPROACH The approach to the V/A is to be "performance-based", meaning it is to evaluate the risk to the City's water system based upon the effectiveness of the security system against the specific malevolent acts determined in the initial step. G. DETERMINIATION OF THE MOST CRITICAL ASSETS The V/A needs to determine the most critical assets (targets) in a water system, detail their interrelationships within other assets in the system, identify the consequences of malevolent acts that could be directed against them, and evaluate the effectiveness of both existing and proposed protection systems. H. IDENTIFICATION OF SYSTEM VULNERABILITIES AND PROVIDE PRIORITIZED UPGRADE PLAN The V/A needs to identify the City system's vulnerabilities and provide a prioritized plan for security upgrades, modification of operational procedures, and/or policy changes to mitigate identified risks to critical assets. The V/A also needs to provide a basis for comparing the cost of protection against the risk posed. The overall goal of the V/A is to develop recommendations that lead to a cost-effective, balanced security protection system with regards to the malevolent acts that are identified. I. ADDITIONAL RECOMENDATIONS Additional recommendations are to be provided where necessary above and beyond the foregoing elements. These would come, based on the experience of the Consultant, the unique features of the City's system, and as new information and developments arise. For example, additional Federal requirements which may be established would need to be incorporated into the V/A. J. REPORTS All findings and recommendations shall be provided in the form of a written report followed by a verbal presentation in order to explain and clarify any questions that may arise from the report. Copies of the written report shall be controlled and provided as directed by the City. This report is not for the general public and needs to be labeled "CONFIDENTIAL — NOT FOR PUBLIC DISCLOSURE" on each page. The Consultant shall not make the report available or use for any purpose without the written consent of the City. The report is to be completed and delivered to the City no later than December 1, 2003 and shall become the property of the City. The written report shall include recommendations of the specific actions, processes, equipment, and procedures, which the City should consider implementing, including the rationale behind the recommendations. Where products, technologies, or services are recommended, the report shall include itemization of the specific feature sets that make the product or technology desirable. Cost estimates for these items should also be provided for budgeting purposes. K. CONSULTANT'S PROPOSAL The Consultant's proposal, dated June 5, 2003, and any extra work detail in the proposal, is hereby incorporated, along with the City's Request for Proposal dated May 14, 2003, into this Agreement.