WH Pacific ~ C110009 CITY OF TIGARD,OREGON
AMENDMENT TO CONTRACT
BURNHAM STREET OWNER'S REPRESENTATIVE AGREEMENT
AMENDMENT #1
The Agreement between the City of Tigard, a municipal corporation of the State of Oregon, hereinafter
called City, and WH Pacific Inc, hereinafter referred to as Contractor, entered into on the 28`h day of
October 27, 2009,is hereby amended as follows
3 Engineer's Fee
A Basic Fee
1) As compensation for Basic Services as described in Exhibit 1 of flus 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
14th-idr-ed Sixty and 68�100 doUffs ($499,760 68) Five Hundred Twenty One Thousand
Five Hundred Eight and 05/100 dollars ($521,5Q8-05)without prior written
authorization
IN WITNESS WHEREOF City has caused this Amendment to be executed by its duly authorized
undersigned officer and Contractor has executed this Amendment upon signature and date listed below
CITY OF TIG WH PACIFIC,INC
Signature Signature
AA cjk4 l L.(,.*A) Po-
Printed Name Printed Name
0/ 1
Date Date
City of Tigard
13125 SW Hall Blvd
CONTRACT CHANGE ORDER Tigard Oregon 97223
AMENDMENT SUMMARY FORM Phone (503) 639-4171
Fax- (503) 684-7297
2S . www tird or gov
Project Title Burnham Street Owner s Representative Project Manager Kim McMillan
Contractor WH Pacific Original Contract# C110009
Effective Dates July 1 2011 Contract/Amend Total Amount $ 521,508 05
Accountin String 2106300753473 Amendment Percenta e Runnin Total %
AMENDMENT DETAILS
Increase contract amount $21 747 37
CHANGE ORDER DETAILS UNIT QTY UNIT$ TOTAL$
NA
REASONING FOR CHANGE ORDER/AMENDMENT
The continuing work to wrap up the ro ect has resulted in a need to increase the amount of the contract
REQUESTING PROJECT MANAGER APPROVING CITY STAFF
Kim McMillian
Signature Signature
9/1/11
Date I Date
Contractor is hereby authorized by the City of Tigard to perform CONTRACTOR
the additional work described below in accordance with the terms
and conditions detailed in the original contract along with all
applicable rules regulations and laws that may be in effect for Signature
the work The unit pricing in the original contract shall apply to
all additional work A cop} of this form once completed is to
be forwarded to the Purchasing Office to ensure all changes to
the encumbrances are met Remember—the cumulative total
of Amendments cannot exceed 25%of the on nal contract Date
'WM PA-C- 11fic
June 20' 2011
Krol NIcM111,tu
Devclopment Rc v iuw N7 niagu
( ityol tibalci (-'onlmtlnuYD(,velopnlent
1312 �3\V I tall BIN d
Tig,nd, OR 97223
Deat Vim
This pioJeL,t is diawmg to a very suuc,e5r11-11 (lose I1 lim been l ie-d plcisuie to assist the City In Il
I hm e been reviewing the cost and budget siluation on this ploject inn Sh'iiing tll-it With)OU Tlie5e
eStimate5 piOJe(ted that the Cost vvOL11d be Veli ( Ime to tl e nl't`cin rim budget ,mount The(ecellL
Nvoik in completion of the paving and as built plans ovc,i thL past month Nati changed that
pioJection I ain requesting an ulcLcasc of the budget lot `,1I M7 I 1 is Included in the, lttachcd
amendment outline and spreadsheet that ire attached 1 his has i i1vuli into al-count the rlcdlr dtie the
city fol the coiiecLion needed to adJusL 1oi the ulcanect 3uivcS vvcuk Ihat,,viii ulcltidecl m our nevi
invoice to ac,Imovvledge that credit
the existing Conti ict budget is $ 199 760 68 This incicasc would itsult in i irc\v rontiact amount of
X521 5013 05
PI(asc 1 c vjievv this and(,all ni(,at(503) 312 3520 if you h ive any questions
sincciely
WH PAC RFIC, I-Mf
Ways( Bauc i PE
Pioject Minagei
9755 SW Barnes Road Suite 300 Portllnd OR 97225 Al 676 09.5 503 )26 0775 www whpauftc com
whpacifl(
June 21" ?011
Kim iVlclvlillan
Det clopmcitt Peviciv Manaeot
( it} o 1 iga)cl Corn inunity TX elopriienl
1312 ',,W Ball Blvd
Tumid, OR 97223
d,c. 4�Ear! �b �B�;�f�>> �.YaOils'UC—C66Y►�'J �Ct'if9rG... b ��GvsC;iceGfidp
���a3(,tict& �,f'f�1Gl�f�fatc;�7t E�r�PPP�.t
teat KLm
This pioject is dtlwuiglo aNeiy sitccesslul close Il has been a teal pleasure to assist the City inii
coinplctron
I hive been leviewing the cost and budget situation on (his pipe ct alid sharing that with you These
Pstmiates piojP(ted that the cost Would be veiy(lose to the m-t-amilm budget amount The recent
woik in(,omphtion of th(,pairing and as bu>_IC plans ov(t IIIc px51 month has changed that
luojection I tun requesting an mrtcasc, o! the budget loi '017 17 3I a int luded in dtc. ittae.hed
amendment outline and spreadsheet that are atmched l his has t il�cn into account the cicdit due the
city foi the correction needed to adjust loi the iirconect s1111 ey tikOik That will included in our ne-t
rnvoic,e to aelmowledge that cicdtt
the existing contract budget is$499 760 53 1 his increase would icsult u1 i iic�v t ontiact amount of
$521 5080S
Pleas., i eview this and call me at(503) 372-3520 if you have any questions
�inceicly
VY1 PA liFIC,
/ A
Wayne 13auci PE
Piolect Manages
975-)SW Barnes Road Suite 300 Porthrid OR 97225 Al 076 04>> A3 526 0775 wwv Ahpacific com
Contract #
■ CITY OF TIGARD , OREGON
ENGINEERING SERVICES AGREEMENT
BURNHAM STREET OWNEWs REPRESENTATIVE
THIS AGREEMENT, made and entered into this 126 day of November, 2009, by and between
the City of Tigard, a municipal corporation, hereinafter referred to as the " City," and WHPacific,
whose authorized representative is Wayne Bauer, and having a principal being a registered engineer
of the State of Oregon, hereinafter referred to as the " Engineer. "
RECITALS
WHEREAS, the City's Fiscal Year 2009-2010 budget provides for the design and construction of
improvements to SW Burnham Street; and
WHEREAS, the accomplishment of the work and services described in this Agreement is necessary
and essential to the public works improvement program of the City; 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;
THEREFORE, in consideration of the promises and covenants contained herein, the parties
hereby agree as follows :
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 1 ,
which is attached hereto and by this reference made a part of this Agreement.
2. Effective Date and Duration
This agreement shall become effective upon the date of execution by the City's Local
Contract Review Board, and shall expire, unless otherwise terminated or extended, on
completion of the work or December 31 , 2011 , whichever comes first. All work under this
Agreement shall be completed prior to the expiration of this Agreement.
3 . Engineer' s Fee
A. Basic Fee
1) As compensation for Basic Services as described in Exhibit 1 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 Four Hundred Ninety Nine
Thousand Seven Hundred Six tv and 68/ 100 Dollars ($499,760. 68) 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 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 Engineer 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.
Co 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 1 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 sickness or injury
to the employees of Engineer or all sums which Engineer agrees to pay for
Page 2
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.
5) Engineer shall make payments promptly, as due, to all persons supplying
services or materials for work covered under this contract. Engineer shall
not permit any lien or claim to be filed or prosecuted against the City on any
account of any service or materials furnished.
6) If Engineer fails, neglects or refuses to make prompt payment of any claim
for labor, materials, or services furnished to Engineer, sub-consultant or
subcontractor by any person as such claim becomes due, City may pay such
claim and charge the amount of the payment against funds due or to become
due to the Engineer. The payment of the claim in this manner shall not
relieve Engineer or their surety from obligation with respect to any unpaid
claims .
4 . 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 previously approved
reproducible drawings, on 3 mil minimum thickness mylar as well as diskette in
"DWG" or "DXF" format, of the original drawings of the work. The City shall
have unlimited authority to use the materials received from the Engineer in any way
the City deems necessary.
Be 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.
5. Assignment /Delegation
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, Engineer 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
Page 3
subcontractor nor anything contained herein shall be deemed to create any contractual relation
between the subcontractor and City.
6. Engineer is Independent Contractor
A. The City's project director, or designee, shall be responsible for determining whether
Engineer's work product is satisfactory and consistent with this agreement, but
Engineer is not subject to the direction and control of the City. 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.
Be Engineer is an independent contractor and not an employee of City. Engineer
acknowledges Engineer's status as an independent contractor and acknowledges that
Engineer is not an employee of the City for purposes of workers compensation law,
public employee benefits law, or any other law. All persons retained by Engineer to
provide services under this contract are employees of Engineer and not of City.
Engineer acknowledges that it is not entitled to benefits of any kind to which a City
employee is entitled and that it shall be solely responsible for workers compensation
coverage for its employees and all other 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 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.
C. 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.
D. 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.
E. 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.
F. Engineer certifies that it currently has a City business tax receipt or will obtain one
prior to delivering services under this Agreement.
G. Engineer is not an officer, employee, or agent of the City as those terms are used in
ORS 30 .265 .
Page 4
7. Indemnity
A. The City has relied upon the professional ability and training of the Engineer as a
material inducement to enter into this Agreement. Engineer represents to the City
that the work under this contract will be performed in accordance with the
professional standards of skill and care ordinarily exercised by members of the
engineering profession under similar conditions and circumstances 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 shall not operate as a waiver or release.
Acceptance of documents by City does not relieve Engineer of any responsibility for
design deficiencies, errors or omissions.
B. Claims for other than Professional Liability. Engineer shall defend, save and hold
harmless the City of Tigard, its officers, agents, and employees from all claims, suits,
or actions and all expenses incidental to the investigation and defense thereof, of
whatsoever nature, including intentional acts resulting from or arising out of the
activities of Engineer or its subcontractors, sub-consultants, agents or employees
under this contract. 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.
Co Claims for Professional Liability. Engineer shall defend, save and hold harmless the
City of Tigard, its officers, agents, and employees from all claims, suits, or actions
and all expenses incidental to the investigation and defense thereof, arising out of the
professional negligent acts, errors or omissions of Engineer or its subcontractors,
sub-consultants, agents or employees in performance of professional services under
this agreement. Any design work by Engineer that results in a design of a facility
that is not readily accessible to and usable by individuals with disabilities shall be
considered a professionally negligent act, error or omission.
D. As used in subsections B and C of this section, a claim for professional responsibility
is a claim made against the City in which the City's alleged liability results directly or
indirectly, in whole or in part, from the quality of the professional services provided
by Engineer, regardless of the type of claim made against the City. A claim for other
than professional responsibility is a claim made against the City in which the City's
alleged liability results from an act or omission by Engineer unrelated to the quality
of professional services provided by Engineer.
8. 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 arising
directly or indirectly out of Engineers 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.
Page 5
I
The policy or policies of insurance maintained by the Engineer and its subcontractors shall
provide at least the following limits and coverages:
A. Commercial General Liability Insurance
Engineer shall obtain, at Engineer'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 $230003000
Products-Completed Operations Aggregate 150003000
Personal & Advertising Injury 1 ,000,000
Each Occurrence 1 ,000,000
Fire Damage (Any one fire) 505000
Medical Expense (Any one person) 53000
Be Professional Liability
Engineer shall obtain, at Engineer's expense, and keep in effect during the term of
this contract, Professional Liability Insurance covering any damages caused by an
error, omission or any negligent acts . Combined single limit per occurrence shall not
be less than $ 1 ,000,000, or the equivalent. Annual aggregate limit shall not be less
than $2,000,000 and filed on a "claims-made" form.
C. Commercial Automobile Insurance
Engineer shall also obtain, at architect's expense, and keep in effect during the term
of the contract (Symbol l or Symbols 8 and 9 as applicable) Commercial Automobile
Liability coverage on an "occurrence" form including coverage for all owned, hired,
and non-owned vehicles . The Combined Single Limit per occurrence shall not be
less than $ 1 ,000,000.
D. 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 obtain such coverage. This
shall include Employer's Liability Insurance with coverage limits of not less than
$ 100,000 each accident.
E. Additional Insured Provision
The Commercial General Liability Insurance Policy and other policies the City
deems necessary shall include the City its officers, directors, and employees as
Page 6
additional insureds with respect to this contract. Coverage will be endorsed to
provide a per project aggregate.
F. Extended Reporting Coverage
If any of the aforementioned liability insurance is arranged on a "claims made" basis,
Extended Reporting coverage will be required at the completion of this contract to a
duration of 24 months or the maximum time period the Engineer's insurer will
provide such if less than 24 months . Engineer will be responsible for furnishing
certification of Extended Reporting coverage as described or continuous "claims
made" liability coverage for 24 months following contract completion. Continuous
"claims made" coverage will be acceptable in lieu of Extended Reporting coverage,
provided its retroactive date is on or before the effective date of this contract.
Coverage will be endorsed to provide a per project aggregate.
G. 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.
H. Insurance Carrier Rating
Coverage 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.
I. Certificates of Insurance
As evidence of the insurance coverage required by the contract, the Engineer 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.
I Primary Coverage Clarification
The parties agree that Engineer'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.
K. 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.
Engineer' s insurance policy shall contain provisions that such policies shall not be canceled
or their limits of liability reduced without 30 days prior notice to City. A copy of each
insurance policy, certified as a true copy by an authorized representative of the issuing
Page 7
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
Attn: Joe Barrett, Sr. Management Analyst
13125 SW Hall Blvd
Tigard, Oregon 97223
Such policies or certificates must be delivered prior to commencement of the work. Thirty
days cancellation notice shall be provided City by certified mail to the name at the address
listed above in event of cancellation or non-renewal of the insurance.
The procuring of such required insurance shall not be construed to limit Engineer's liability
hereunder. Notwithstanding said insurance, Engineer shall be obligated for the total amount
of any damage, injury, or loss caused by negligence or neglect connected with this contract.
9. 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.
10. 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.
Page 8
Any such termination of this agreement under paragraph (A) shall be without
pre)udice to any obligations or liabilities of either party already accrued prior to such
termination.
Be 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 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 14 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.
11 . 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 fixture occasion.
12. 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,
mail, or by 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:
Page 9
CITY OF TIGARD WHPACIFIC
Attn: Kim McMillan, Const. Svcs. Engineering Mgr. Attn: Wayne Bauer, Project Manager
Address: 13125 SW Hall Blvd. Address: 9775 SW Barnes Road, Suite 300
Tigard, Oregon 97223 Portland, Oregon 97225
Phone: (503) 718-2642 Phone: (503) 626-0455
Fax: (503) 624-0752 Fax: (503) 526-0775
aaaaaaaaaEmail Address: kimgtipar�d-ongov Email Address: wbauer a,whpacific.com
and when so addressed, shall be deemed given upon deposit in the United States mail, postage
prepaid, or when so faxed, shall be deemed given upon successful fax. 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.
13. 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.
14. Professional Services
The City requires that services provided pursuant to this agreement shall be provided to the
City by an Engineer, which does not represent clients on matters contrary to City interests.
Further, Engineer shall not engage services of an engineer 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 of an engineer 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 five (5) 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 10 (B - 3) of this agreement.
15. 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 allreasonable 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.
Page 10
16. Non-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.
17. Errors
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.
18. Extra (Changes) Work
Only the City's designated Project Manager, Kim McMillan, may authorize extra (and/or
change) 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.
19. 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.
20. 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 279C.
21 . 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.
22. Access to Records
City shall have access to such books, documents, papers and records of Engineer as are
directly pertinent to this Agreement for the purpose of making audit, examination, excerpts
and transcripts .
23. 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.
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24. Severabilitv
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.
25. Industrial Accident Fund Payment
Contractor shall pay all contributions or amount due the Industrial Accident Fund form that
Contractor or subcontractors incur during the performance of this Agreement.
26. Complete Agreement
This Agreement and attached exhibit(s) 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. Engineer, by the signature of its authorized representative, hereby
acknowledges that he/she 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 Architect has executed this Agreement on the date hereinabove first written.
Approved by the Tigard Local Contract Review Board: October 27, 2009
CITY F IG PACIFIC
I
By: Au orized City Representative By. uthonzed C ntractor Representative
/ /so
Date Date
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EXHIBIT 1
DUTY OF ENGINEER
Construction Project Overview
The construction project associated with this Agreement includes the reconstruction of SW
Burnham Street from SW Hall Boulevard to SW Main Street in downtown Tigard. SW Ash Street
will also be improved to the south of SW Burnham Street and newly constructed from SW Burnham
Street to the Commuter Rail Park & Ride Lot. The street improvement project provides for two
travel lanes, parking and sidewalks on both sides of SW Burnham Street along the entire length of
the project. Water quality, drainage improvements, landscaping, streetscaping, sanitary sewer
improvements, waterline improvements, undergrounding of utilities, and street lighting
improvements also constitute work encompassed under the project.
General Service Overview
The City recognizes the need for additional expertise to assist staff in managing this project largely
due to its sheer size. Contractor shall serve as the City's onsite representative during the project's
work providing construction review, construction survey and layout, inspection services, testing
services, and other services as needed.
Specific Service Details
The Contractor shall provide the City with the personnel, materials, and resources required to
perform the following services related to the SW Burnham Street project:
1. Construction project management, contract administration, and contract documentation for
the project construction;
2. Conduct any pre-construction meetings with the project's Prime Contractor and City;
3 . Provide certified inspectors per the construction project's specifications;
4 . Coordination of submittal reviews and responses from the Engineer of Record;
5 . Construction of construction related questions and obtain responses from the Engineer of
Record;
6. Review and approve, when appropriate, all Construction Shop Drawings;
7 . Perform construction monitoring and inspection services for the SW Burnham Street
project;
8 . Perform field measurements and calculations and prepare documentation for monthly
construction progress estimates;
9 . Perform environmental and permit coordination and compliance monitoring during the
construction phase of the SW Burnham Street project;
10 . Complete and submit as-constructed plans;
11. Schedule, prepare agendas for, attend, participate in, facilitate, and prepare minutes of
Project process meetings;
12. Review and recommend needed design changes;
13 . Develop and submit the Project Manager's narrative reports on construction;
14 . Review documentation with the City at regular intervals throughout the Project;
15 . Prepare and submit the final Project documentation as outlined in the Project's Construction
Manual;
16 . Provide detailed monthly updates on the Prime Contractor's progress during the Project;
and
17 . Provide additional services to the City as needed during the SW Burnham Street Project.
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EXHIBIT 2
CONTRACTOR'S PROPOSAL
In the event of a conflict between the Contractor's Proposal, hereby incorporated into the
Agreement by this reference, and the Agreement terms and conditions or Exhibit 1 , the order of
precedence shall be as follows : Agreement terms and conditions, Exhibit 1 , then Exhibit 2.
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