AMEC Foster Wheeler Envrionment And Infrastructure, Inc ~ C170042 CITY OF TIGARD,OREGON-CONTRACT SUMMARY FORM
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Contract Title: Fanno Creek Bank Failure NumberC `
Contractot� Shannon&Filson contract Total: $1,800
Contract Overview,-: Shannon& Wilson is bung hired to provide a design memo and details for a
tempos fix of a slide adjacent to Fanno Creek Tiail between Ash Avenue
and Blain Street.
Initial Risk Level: ❑ Extreme ❑ High -Moderate ❑ Low
Risk Reduction Steps:
Risk Comments-:
Risk Signatute:
Contract Manager:Andrew Newbury Ext: 2472 Department. PW/Engineering
TS,pe: ❑ Purchase Agreement ❑ Petsonal Service ❑ Gene al Service ❑ Public Improvement
❑ IOA Z Other: Engineering Services Agteement
Start Date: December 27,2016 End Date: Match 30,2017
Quotes/Bids/Proposal: FIRM AmouNT/Scorn
Shannon&Wilson $1,800
..:account Stting: f2M&Division-Aeeoulat Work Order—Activity c A_+r gunt
FY 17 510-8000-56005 94001-130 $1,800
FY
Approvals - LCRB Date:
Department Comments:
Department Signature.:
ti..
Purchasing Comments:
Purchasing Signature:
City.Manager Comments:
City Manager signature:
After securing all required approvals,forward original copy to the Contracting and Purchasing Office ce along with a
completed Contract Checklist.
Contract Number
CITY OF TIGARD,OREGON
ENGINEERING SERVICES AGREEMENT
FANNO CREEK TEMPORARY BANK STABILIZATION—
ASH ST AND MAIN ST
THIS AGREEMENT,made and entered into this 27`''day of December,2016,by and between the
City of Tigard,a municipal corporation,hereinafter referred to as the "City," and Shannon&Filson,
whose authorized representative is David Higgins,and having a principal being a registered engineer
of the State of Oregon,hereinafter referred to as the "Engineer."
RECITALS
WHEREAS,the City's 2016-2017 fiscal year budget provides for services for the Fanno Creek Bank
Temporary Bank Stabilization project;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 A,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 and shall expire, unless
otherwise terminated or extended,upon completion of the work or April 30,2017,whichever
comes first. All work under this Agreement shall be completed prior to the expiration of this
Agreement.
3. Eng_ineer's Fee
A. Basic Fee
1) As compensation for Basic Services as described in Exhibit A 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 B 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 One Thousand Eight
Hundred and No/100 Dollars ($1,800.00) 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 shallrelease 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 B 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. Pa=ent—General
1) Engineer shall pay to the Department of Revenue all sums v-ithheld 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 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 paving 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-,,mrk 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.
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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,Cit;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 as well as storage device such as thumb drive or sd card in"DWG" or "DXF"
format, of the original drawings of the work. The City shall ha,%re unlimited authority to
use the materials received from the Engineer in any way the City-deems necessary.
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.
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 subcontractor not
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,%ith 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.
B. 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
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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 lave-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 an;
partnership or corporation in which a City employee has an interest, has or will receive
any remuneration of any description from the Engineer, either directlj 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 prop-ided.
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 shall obtain,prior to the execution of any performance under this Agreement,a
City of Tigard Business License. The Tigard Business License is based on a calendar year
with a December 31st expiration date. New businesses operating in Tigard after June 30th
of the current year will pay a pro-rated fee though the end of the calendar year.
G. Engineer is not an officer, employee, or agent of the City as those terms are used in ORS
30.265.
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 agrees and shall indemnify,defend,
save and hold harmless the City of Tigard, its officers, employees, agents, and
representatives 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 in performance of this contract at both trial and appeal
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level,whether or not a trial or appeal ever takes place including any hearing before federal
or state administrative agencies.. 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.
C. Claims for Professional Liability. Engineer agrees and shall indemnify, defend, save and
hold harmless the City of Tigard,its officers,employees,agents,and representatives 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 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 v-hich 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 Cit;in performance of this contract. 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 in performance of this contract.
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 risks arising directly or indirectly
out of Engineer's activities or work hereunder,including the operations of its subcontractors of
an;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.
The policy or policies of insurance maintained by the Engineer and its subcontractors shall
proxide 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(CG 20101185 or equivalent). This coverage shall include
Contractual Liabilit;insurance for the indemnity provided under this contract. The following
insurance will be carried:
Coverage Limit
General Aggregate $3,000,000
Products-Completed Operations Aggregate $2,000,000
Personal&Advertising Injury $1,000,000
Each Occurrence $2,000,000
Fire Damage(Any one fire) $50,000
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B. 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 any actual or
alleged negligent act, error or omission in the rendering of or failure to render Professional
Services. Combined single limit per claim 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 Engineer's expense,and keep in effect during the term of the
contract (Symbol 1 or Symbols 8 and 9 as applicable) Commercial Automobile Liabilit;
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$2,000,000.
If Contractor operates a personally-owned vehicle for business use under this contract,the
Contractor shall obtain, at Contractor's expense, and keep in effect during the term of the
contract, business automobile liability coverage for all owned vehicles on an "occurrence"
form. The Combined Single Limit per occurrence shall not be less than$2,000,000.
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 vith 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
,York 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$1,000,000
each accident.
E. Additional Insured Provision
All policies aforementioned, other than V orkers' Compensation and Professional Liability,
shall include the City its officers,employees,agents and representatives as 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.
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G. Insurance Carrier Rating
Coverage provided by the Engineer must be underwritten b;an insurance company deemed
acceptable by the City. All policies of insurance must be written by companies having an
A.M.Best rating of"A-ti'II" or better,or equivalent. The City reserves the right to reject all
or any insurance carrier(s)with an unacceptable financial rating.
H. Self-Insurance
The City understands that some Contractors may self-insure for business risks and the City
will consider whether such self-insurance is acceptable if it meets the minimum insurance
requirements for the type of coverage required. If the Contractor is self-insured for
commercial general liability or automobile liability insurance the Contractor must provide
evidence of such self-insurance. The Contractor must provide a Certificate of Insurance
showing evidence of the coverage amounts on a form acceptable to the City. The City
reserves the right in its sole discretion to determine whether self-insurance is adequate.
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 effective until the required
Certificates of Insurance have been received and approved by the City. The certificate will
specify and document all provisions within this contract and include a copy of Additional
Insured Endorsement. A renewal certificate will be sent to the address below prior to
coverage expiration.
J. Independent Contractor Status
The sen-ice or services to be rendered under this contract are those of an independent
contractor. Contractor is not an officer, employee or agent of the City as those terms are
used in ORS 30.265.
K. 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.
L. Cross-Liability Clause
A cross-liability clause or separation of insureds clause v%ill be included in all general liability
and commercial automobile policies required by this contract.
A certificate in form satisfactory to the City certifying to the issuance of such insurance will be
forwarded to:
City of Tigard
Attn: Contracts and Purchasing Office
13125 S)X'Hall Blvd
Tigard,Oregon 97223
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At the discretion of the City, a copy of each insurance policy, certified as a true copy by an
authorized representative of the issuing insurance company may be required to be forwarded to
the above address.
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 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 mai-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 ani 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 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.
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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 future
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:
CITY OF TIGARD SHANNON&WILSON,INC
Attn:Andrew Newbury Attn: David Higgins
Address: 13125 S)X'Hall Blvd. Address: 3990 Collins Way Ste 100
Tigard,Oregon 97223 Lake Oswego,OR 97035
Phone: (503) 718-2472 Phone: (503)210-4750
Email: andrew@tiWd-or.gov Email: djh@shanwil.com
and v:hen 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 seri-ices 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,
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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 seven (7) 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 vn iting 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.
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 659A.142,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 v ork
required under this Agreement without undue delays and without additional cost.
18. Extra (Changes)Work
Only the City's Project Manager mai-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.
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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 279A,279B,and 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.
24. 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.
25. Representations and Warranties
Engineer represents and warrants to the City that:
A. Engineer has the pov.7er and authority to enter into and perform this_agreement.
B. This Agreement, when executed and delivered, is a valid and binding obligation of
Engineer,enforceable in accordance with its terms.
C. Engineer(to the best of Engineer's knowledge,after due inquiry),for a period of no fewer
than six calendar years (or since the firm's inception if less than that) preceding the
effective date of this Agreement, faithfully has complied v.ith:
1) All tax laws of this state,including but not limited to ORS 305.620 and ORS chapters
316,317,and 318;
2) Any tax provisions imposed by a political subdivision of this state that applied to
Engineer, to Engineer's property, operations, receipts, or income, or to Engineer's
performance of or compensation for any work performed by Engineer;
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3) Any tax proNisions imposed by a political subdivision of this state that applied to
Engineer, or to goods, services, or property,whether tangible or intangible,provided
by Engineer;and
4) Any rules,regulations,charter provisions,or ordinances that implemented or enforced
any of the foregoing tax laws or provisions.
D. Any intellectual property rights or such delivered to the City under this Agreement, and
Engineer's services rendered in the performance of Engineer's obligations under this
Agreement, shall be provided to the City free and clear of any and all restrictions on or
conditions of use,transfer,modification,or assignment,and shall be free and clear of any
and all liens,claims,mortgages,security interests,liabilities,charges,and encumbrances of
any End.
26. Compliance with Tax Laws
A. Engineer must,throughout the duration of this Agreement and any extensions,comply with
all tax laws of this state and all applicable tax lavas of any political subdivision of the State of
Oregon. For the purposes of this Section,"tax laws"includes all the provisions described
in subsection 25.C. 1) through 4) of this Agreement.
B. Any violation of subsection A of this section shall constitute a material breach of this
.:agreement. Further, any Niolation of Engineer's warranty, in subsection 25.0 of this
Agreement,that the Engineer has complied with the tax laws of the State of Oregon and the
applicable tax laws of any political subdivision of this state also shall constitute a material
breach of this Agreement. Any violation shall entitle the City to terminate this Agreement,
to pursue and recover any and all damages that arise from the breach and the termination of
this Agreement,and to pursue any or all of the remedies available under this Agreement,at
law,or in equity,including but not limited to:
1) Termination of this Agreement,in whole or in part;
2) Exercise of the right of setoff, and withholding of amounts otherwise due and owing
to Engineer,in an amount equal to State's setoff right,without penalty;and
3) Initiation of an action or proceeding for damages, specific performance, declaratory
or injunctive relief. The City shall be entitled to recover any and all damages suffered
as the result of Engineer's breach of this Agreement,including but not limited to direct,
indirect, incidental and consequential damages, costs of cure, and costs incurred in
securing a replacement Engineer.
These remedies are cumulative to the extent the remedies are not inconsistent, and the City
may pursue any remedy or remedies singly, collectively, successively, or in any order
whatsoever.
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ESA Template-Revised 10/7/2015
27. Complete Agreement
This Agreement,including the exhibits,is intended both as a final expression of the Agreement
between the Parties and as a complete and exclusive statement of the terms. In the event of an
inconsistency between a provision in the main body of the Agreement and a provision in the
Exhibits, the provision in the main body of the Agreement shall control. In the event of an
inconsistency between Exhibit A and Exhibit B,Exhibit A shall control.
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 Engineer has executed this agreement on the date hereinabove first v iitten.
CITY OF TIGARD SHANNON&WILSON,INC
137:.9uthorized City of Tigard Representative By:Aut oozed Contractor Representative
Date Date
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ESA Template—Revised 10/7/2015
EXHIBIT A
SCOPE OF SERVICES
The Engineer shall render professional engineering services as described below:
• Engineer shall make one site visit to observe conditions
• Create a letter for temporary mitigation repair recommendations (including mesh type and
anchor recommendations)
• Engineer shall make one site visit during the construction of the repair to observe mesh and
anchor installation
Estimated cost is $1,800
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ESA Template—Revised 10/7/2015
CITY OF TIGARD,OREGON-CONTRACT SUMMARY FORM
(THIS FORM MUS T ACCOMPAVYEVER Y CONTRACT) � I��1`9I
Contract Title: Main/Fanno Cleanup Activities Number:
(.'Onttactof: lmec Fostei Wheeler Contract'Total $92.600
Contract Orerview: Main/Fanno site Cleanup Planning; Remedial Action Plan,Bidding Specs,-V of
Mitigation System Design,Erosion Control Plan,404 Permitting- Contractor
Ovetsi bt.Mnnitoring and Reporting.Work funded ba EPS Brownfield Cleanup
,+?rarit.
Initial Risk Level: ❑ Extreme ❑ High Z Moderate ❑ Low
Risk Reduction Steps:
Risk Comments.
Risk Signature:
Contract Mana€;et- Sean Farrell F: t. 2420 Department: 3700
Type: ❑ Purchase Agreement ❑ Personal Service ❑ General Service ❑ Public Improvement
❑ IGA Q Other: Professional Service Start Date: 12/13/2016_ End Da
Quotes/Bids/Proposal: FIRM -AmouNT/ScoRE
Direct Appoint
Account String: Fund-Division-Account Work Order-Activii T}Te Amount
FY 17 940-8000-56005 9701301-120 $46,300
FY 17 940-8000-56005 9701302-120 $46,300
FY
FY
FY
AFprovals - LCRB Date:
Department Comments:
Department Signature-.
Purchasing Comments:
Purchasing Signature: -
City Manager Comments:
Citi TManagef Signature_
After securing all required approvals,forward original copy to the Contracting and Purchasing Office along with a
completed Contract Checklist.
Contract#C
TIGARD AGENCY CENTER DEVELOPMENT AGENCY
PROFESSIONAL SERVICES AGREEMENT
MAIN/FANNO SITE CLEANUP ACTIVITIES
THIS AGREEMENT,made and entered into this 1"day of December, 2016,by and between the
City Center Development Agency of the City of Tigard,a municipal corporation,hereinafter referred
to as the "Agency," and Amec Foster Wheeler Environment and Infrastructure, Inc., hereinafter
referred to as the "Consultant."
RECITALS
WHEREAS,the Agency's Fiscal Year 2016-2017 budget provides for environmental cleanup services
for the Main/Fanno project;and
WHEREAS,the City Center Development Agency of the City of Tigard received two cleanup grants
from the U.S. Environmental Agency to clean up the Main Street/Fanno Creek(Saxony) site; and
WHEREAS,the accomplishment of the work and services described in this Agreement is necessary
and essential to the program of the Agency;and
WHEREAS,Consultant agrees to comply with any requirement provided in the EPA Work Plan and
Cooperative Agreement included Attachments C and D;and
WHEREAS, the Agency desires to engage the Consultant to render professional environmental
services for the project described in this Agreement, and the Consultant 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. Consultant's Scope of Services
The Consultant shall perform professional environmental services relevant to the Project in
accordance with the terms and conditions set forth herein,and as provided in Exhibit A,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 Agency's Local Contract
Review Board,and shall expire,unless otherwise terminated or extended,on completion of the
work or August 15, 2019 whichever comes first. All work under this Agreement shall be
completed prior to the expiration of this Agreement.
3. Consultant's Fee
A. Basic Fee
1) As compensation for Basic Services as described in Exhibit A of this Agreement, and
for services required in the fulfillment of Paragraph 1,the Consultant shall be paid on
an hourly rate based upon the "Schedule of Rates" in Exhibit B 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 Ninety Two Thousand
Six Hundred and No/100 Dollars ($92,600.00)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 Consultant 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 Consultant's compensation will
not be adjusted unless the Scope of Services to be provided by the Consultant changes
and is authorized and accepted by the Agency.
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 Agency shall release the Agency from any further obligation for payment
to the Consultant 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 Agency, the Consultant shall furnish or acquire for
the Agency the professional and technical services based on the hourly rate schedule as
described in Exhibit B of this contract for minor project additions and/or alterations.
D. Certified Cost Records
The Consultant 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
Consultant shall be subject to audit by the Agency. The Consultant shall complete work
and cost records for all billings on such forms and in such manner as will be satisfactory
to the Agency.
E. Contract Identification
The Consultant shall furnish to the Agency its employer identification number, as
designated by the Internal Revenue Service, or social security number, as the Agency
deems applicable.
F. Payment—General
1) Consultant shall pay to the Department of Revenue all sums withheld from employees
pursuant to ORS 316.167.
2) 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.
3) 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
2 1 1 -.
law, contract or agreement for the purpose of providing or paying for such service.
4) The Agency certifies that sufficient funds are available and authorized for expenditure
to finance costs of this contract.
5) Consultant shall make payments promptly,as due,to all persons suppli ing services or
materials for work covered under this contract. Consultant shall not permit any lien
or claim to be filed or prosecuted against the Agency on any account of any service or
materials furnished.
6) If Consultant fails,neglects or refuses to make prompt payment of any claim for labor,
materials,or services furnished to Consultant,sub-consultant or subcontractor by any
person as such claim becomes due,Agency may pay such claim and charge the amount
of the payment against funds due or to become due to 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.
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 shallremain,the property of the Consultant;however, the
Agency 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 Agency shall have unlimited
authority to use the materials received from the Consultant in any way the Agency deems
necessary.
B. The Agency shall make copies, for the use of and without cost to the Consultant,of all of
its maps,records,laboratory tests,or other data pertinent to the work to be performed by
the Consultant pursuant to this Agreement, and also make available any other maps,
records,or other materials available to the Agency from any other public agency or body.
C. The Consultant shall furnish to the Agency, copies of all maps, records, field notes, and
soil tests which were developed in the course of work for the Agency and for which
compensation has been received by the Consultant at no additional expense to the Agency
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 part,-has so consented. If Agency 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 Agency of any subcontractor
nor anything contained herein shall be deemed to create any contractual relation between the
subcontractor and Agency.
6. Consultant is Independent Contractor
A. The Agency's project director, or designee, shall be responsible for determining whether
Consultant's work product is satisfactory and consistent with this agreement, but
Consultant is not subject to the direction and control of the Agency. Consultant shall be
an independent contractor for all purposes and shall be entitled to no compensation other
31
than the compensation provided for under Section 3 of this Agreement.
B. Consultant is an independent contractor and not an employee of Agency. Consultant
acknowledges Consultant's status as an independent contractor and acknowledges that
Consultant is not an employee of the Agency for purposes of workers compensation law,
public employee benefits law, or any other lav-. All persons retained by Consultant to
provide services under this contract are employees of Consultant and not of Agency.
Consultant acknowledges that it is not entitled to benefits of any kind to which a Agency
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 Consultant is found by a court of law or an administrative agency to be
an employee of the Agency for any purpose, Agency shall be entitled to offset
compensation due,or to demand repayment of any amounts paid to Consultant under the
terms of the agreement,to the full extent of any benefits or other remuneration Consultant
receives (from Agency or third party) as a result of said finding and to the full extent of
any payments that Agency is required to make(to Consultant or to a third party)as a result
of said finding.
C. The undersigned Consultant hereby represents that no employee of the Agency or any
partnership or corporation in which a Agency employee has an interest,has or will receive
any remuneration of any description from the Consultant, 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, Consultant 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. 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.
F. Consultant shall obtain,prior to the execution of any performance under this Agreement,
a Agency of Tigard Business License. The Tigard Business License is based on a calendar
year with a December 31st expiration date. New businesses operating in Tigard after June
30th of the current year will pay a pro-rated fee though the end of the calendar year.
G. Consultant is not an officer, employee,or agent of the Agency as those terms are used in
ORS 30.265.
7. Inden city
A. The Agency has relied upon the professional ability and training of the Consultant as a
material inducement to enter into this Agreement. Consultant represents to the Agency
that the work under this contract-,7k-ill be performed in accordance with the professional
standards of skill and care ordinarily exercised by members of the Consultant's 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 Consultant's work
41 ` _ -,
by the Agency shall not operate as a waiver or release. Acceptance of documents by
Agency does not relieve Consultant of any responsibility for design deficiencies,errors or
omissions.
B. Claims for other than Professional Liability. Consultant agrees and shall indemnify,
defend, save and hold harmless the Agency of Tigard,its officers,employees,agents,and
representatives 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 Consultant or its subcontractors, sub-
consultants, agents or employees in performance of this contract at both trial and appeal
level,whether or not a trial or appeal ever takes place including any hearing before federal
or state administrative agencies.. 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.
C. Claims for Professional Liability. Consultant agrees and shall indemnify, defend, save and
hold harmless the Agency of Tigard, its officers, employees, agents, and representatives
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 Consultant
or its subcontractors,sub-consultants,agents or employees in performance of professional
services under this agreement. Any work by Consultant 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 Agency in which the Agency's alleged liability results directly or
indirectly, in whole or in part, from the quality of the professional services provided by
Consultant, regardless of the type of claim made against the Agency in performance of
this contract. A claim for other than professional responsibility is a claim made against
the Agency in which the Agency's alleged liability results from an act or omission by
Consultant unrelated to the quality of professional services provided by Consultant in
performance of this contract.
8. Insurance
Consultant and its subcontractors shall maintain insurance acceptable to Agency in full force and
effect throughout the term of this contract. Such insurance shall cover risks arising directly or
indirectly out of Consultant'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 Agency and that any other insurance maintained by
Agency is excess and not contributory insurance with the insurance required hereunder.
The policy or policies of insurance maintained by the Consultant and its subcontractors shall
provide at least the following limits and coverages:
A. Commercial General Liability Insurance
Consultant shall obtain,at Consultant's expense, and keep in effect during the term of this
contract, Comprehensive General Liability Insurance covering Bodily Injury and Property
5
Damage on an"occurrence"form(CG 20101185 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 $3,000,000
Products-Completed Operations Aggregate $2,000,000
Personal&Advertising Injury $1,000,000
Each Occurrence $2,000,000
Fire Damage(Any one fire) $50,000
B. Professional Liability
Consultant shall obtain, at Consultant's expense, and keep in effect during the term of this
contract, Professional Liability Insurance covering any damages caused by any actual or
alleged negligent act,error or omission in the rendering of or failure to render Professional
Services.Combined single limit per claim shall not be less than$2,000,000,or the equivalent
Annual aggregate limit shall not be less than$3,000,000 and filed on a"claims-made"form.
C. Commercial Automobile Insurance
Consultant shall also obtain, at Consultant's expense,and keep in effect during the term of
the contract(Symbol 1 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$2,000,000.
If Contractor operates a personally-owned vehicle for business use under this contract, the
Contractor shall obtain, at Contractor's expense, and keep in effect during the term of the
contract, business automobile liability coverage for all owned vehicles on an "occurrence"
form. The Combined Single Limit per occurrence shall not be less than$2,000,000.
D. Workers'Compensation Insurance
The Consultant, 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.
Consultants 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$1,000,000 each accident.
E. Additional Insured Provision
All policies aforementioned, other than Workers' Compensation and Professional Liability,
shall include the Agency its officers, employees, agents and representatives as additional
insureds with respect to this contract. Coverage will be endorsed to provide a"per project"
aggregate.
6 �
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 Consultant's insurer will provide such if less
than 24 months. Consultant 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. Insurance Carrier Rating
Coverage provided by the Consultant must be underwritten by an insurance company
deemed acceptable by the Agency. All policies of insurance must be written by companies
having an A.M.Best rating of"A-VII"or better,or equivalent. The Agency reserves the right
to reject all or any insurance carrier(s)with an unacceptable financial rating.
H. Self-Insurance
The Agency understands that some Contractors may self-insure for business risks and the
Agency will consider whether such self-insurance is acceptable if it meets the minimum
insurance requirements for the type of coverage required. If the Contractor is self-insured
for commercial general liability or automobile liability insurance the Contractor must provide
evidence of such self-insurance. The Contractor must provide a Certificate of Insurance
showing ei idence of the coverage amounts on a form acceptable to the Agency. The Agency
reserves the right in its sole discretion to determine whether self-insurance is adequate.
I. Certificates of Insurance
As evidence of the insurance coverage required by the contract,the Consultant shall furnish
a Certificate of Insurance to the Agency. No contract shall be effective until the required
Certificates of Insurance have been received and approved by the Agency. The certificate
will specify and document all provisions within this contract and include a copy of Additional
Insured Endorsement. A renewal certificate will be sent to the address below prior to
coverage expiration.
J. Independent Contractor Status
The service or services to be rendered under this contract are those of an independent
contractor. Contractor is not an officer,employee or agent of the Agency as those terms are
used in ORS 30.265.
K. PrirnarXCoverage 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 Agency is excess and not
contributory insurance with the insurance required in this section.
L. Cross-Liability Clause
A cross-liability clause or separation of insureds clause will be included in all general liability
7 1 1
and commercial automobile policies required by this contract.
A certificate in form satisfactory to the Agency certifl ing to the issuance of such insurance
will be forwarded to:
City of Tigard
Attn: Contracts and Purchasing Office
13125 SW Hall Blvd
Tigard,Oregon 97223
At the discretion of the Agency, a copy of each insurance policy, certified as a true copy by an
authorized representative of the issuing insurance company may be required to be forwarded to
the above address.
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 Consultant'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. Termination Without Cause
At any time and without cause,Agency shall have the right in its sole discretion, to terminate
this Agreement by giving notice to Consultant. If Agency terminates the contract pursuant to
this paragraph,it shall pay Consultant for services rendered to the date of termination.
10. Termination With Cause
A. Agency may terminate this Agreement effective upon delivery of written notice to Consultant,
or at such later date as may be established by Agency,under any of the following conditions:
1) If Agency 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 Consultant,its
subcontractors, agents, and employees to provide the services required by this
Agreement is for any reason denied,revoked,or not renewed.
4) 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. Agency, by written notice of default (including breach of contract) to Consultant, may
terminate the whole or any part of this Agreement:
8j
1) If Consultant fails to provide services called for by this agreement within the time
specified herein or any extension thereof,or
2) I£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 Agency, fails to correct such
failures within ten days or such other period as Agency may authorize.
3) I£Consultant fails to eliminate a conflict as described in Section 14 of this agreement.
The rights and remedies of Agency 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.
I£Agency 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 Agency 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.
11. Non-Waiver
The failure of Agency 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.
12. Method and Place of Giving Notice, Submitting Bills and Maldng Pa_) nents
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:
CCDA nF CITE'LSF Twuu) ANIEC Fc SI IR WHEELER
Attn: Sean Farrelly Attn:John Kuiper
Address: 13125 SW Hall Blvd. Address: 7376 SW Durham Rd.
Tigard, Oregon 97223 Tigard, OR 97224
Phone: (503) 503-718-2420 Phone: 503-639-3400
Email: sean@tigard-or.gov Email: john.kuiper@amecfu-.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 who notices,bills and payments are to be
given by giving written notice pursuant to this paragraph.
9 �
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 Agency requires that services provided pursuant to this agreement shall be provided to the
Agency by an Consultant, which does not represent clients on matters contrary to Agency
interests. Further, Consultant shall not engage services of an Consultant and/or other
professional who individually, or through members of his/her same firm,represents clients on
matters contrary to Agency interests.
Should the Consultant represent clients on matters contrary to Agency interests or engage the
services of an Consultant and/or other professional who individually, or through members of
his/her same firm, represents clients on matters contrary to Agency interests, Consultant shall
consult with the appropriate Agency representative regarding the conflict.
After such consultation, the Consultant shall have 30 days to eliminate the conflict to the
satisfaction of the Agency. If such conflict is not eliminated v:ithin the specified time period,
the agreement may be terminated pursuant to Section 10 (B-3) of this agreement
15. Force Majeure
Neither Agency 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 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-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 659A.142, and all regulations and administrative rules
established pursuant to those laws. All facilities designed by Consultant under this contract shall
be designed to be readily accessible to and usable by individuals with disabilities as required by
the Americans with Disabilities Act.
17. 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.
10 �
18. Extra(Changes)Work
Only the Agency's Project Manager may authorize extra (and/or change) 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.
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
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 279A,279B,and 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 herevrith.
22. Access to Records
Agency shall have access to such books, documents,papers and records of Consultant as arc
directly pertinent to this Agreement for the purpose of making audit, examination, excerpts
and transcripts.
23. 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 Agency, 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.
24. 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.
25. Conditions of Supplying A Public AgencX
Where applicable, seller must make payment promptly as due to persons supplying Consultant
labor or materials for the execution of the work provided by this order. Consultant shall not
permit any lien or claim to be filed or prosecuted against Buyer or any subdivision of City on
account of any labor or material to be furnished. Consultant further agrees to pay to the
Department of Revenue all sums withheld from employees pursuant to ORS 316.167.
26. Hours of Labor
If labor is performed under this order,then no person shall be employed for more than eight(8)
hours in any one day, or forty (40) hours in any one week, except in cases of necessity, or
emergency or where the public policy absolutely requires it, and in such cases, except cases of
contracts for personal services as defined in ORS 279A.055,the labor shall be paid at least time
and a half for all overtime in excess of eight (8) hours a day and for all work performed on
Saturday and on any legal holidays as specified in ORS 279C.540. In cases of contracts for
personal services as defined in ORS 279A.055,any labor shall be paid at least time and a half for
all hours worked in excess of forty (40) hours in any one week, except for those individuals
excluded under ORS 653.010 to 653.260 or under 29 USC SS 201-209.
27. Medical Care and Workers'Compensation
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 such Consultant, of all sums which the
Consultant agrees to pay for such services and all moneys and sums which the Consultant
collected or deducted from the wages of the employees pursuant to any law, Consultant
agreement for the purpose of providing or paying for such service.
28. Debarment
Consultant represents and v arrants that it and its subcontractors are not debarred,suspended,
or placed in any ineligibility status under the provisions of 24 CFR 24(government debarment
and suspension regulations).
29. Trafficking
Consultant, consultant's employees, subcontractors under this award, and subcontractor
employees may not engage in severe forms of trafficking in persons during the period of time
that the award is in effect; procure a commercial sex act during the period of time that the
award is in effect;or use forced labor in the performance of the award or sub-award under the
award.
30. Non-Discrimination& DBE/MBE/WBE
Consultant shall not discriminate on the basis of race, color, national origin or sex in the
performance of the awarded contract.
Consultant, and any subcontractor(s), agrees to comply with the requirements of EPA's
Program for Utilization of Small,Minority,and Women's Business Enterprises (MBE/VBE)
in procurement under assistance agreements,contained in 40 CFR,Part 33.
Consultant,and any subcontractor(s), shall ensure that a good faith implementation of the six
good faith efforts for procurement from all types of Disadvantaged Business Enterprises
(DBE) is in place prior to any work under the awarded contract. Good faith efforts must be
make whenever procuring construction, equipment, services, and/or supplies under an EPA
financial assistance agreement. Documentation demonstrating that these six good faith efforts
have been taken must be retained for the project's files. The six good-faith efforts in soliciting
subcontractors shall be as follows:
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A. Ensure DBEs are made aware of contracting opportunities to the fullest extent practicable
through outreach and recruitment activities. For Indian Tribal, State, and Local
Government recipients,this includes placing DBEs on solicitation lists and soliciting them
whenever they are potential sources.
B. Make information on forthcoming opportunities available to DBEs and arrange time
frames for contracts and establish delivery schedules,where the requirements permit,in a
way that encourages and facilitates participation by DBEs in the competitive process.This
includes,whenever possible,posting solicitations for bids or proposals for a minimum of
30 calendar days before the bid or proposal closing date.
C. Consider in the contracting process whether firms competing for large contracts could
subcontract with DBEs. This may include dividing total requirements,when economically
feasible,into smaller tasks or quantities to permit maximum participation by DBEs in the
competitive process.
D. Encourage contracting with a consortium of DBEs when a contract is too large for one
of these firms to handle individually.
E. Utilize the services of the Small Business Administration(SBA) and the Minority Business
Development Agency of the Department of Commerce.
F. Require the sub-contractors to take these six good-faith efforts in subcontracting with
Disadvantaged Business Enterprises for any secondary subcontract that they let.
31. Lobbying
Consultant, and any subcontractor(s), agrees to comply with Title 40 CFR Part 34, New
Restrictions on Lobbying. The successful contractor shall include the language of this
provision in award documents for all subcontracts exceeding $100,000, and require that
subcontractors submit certification and disclosure forms accordingly.
In accordance with the Byrd Anti-Lobbying Amendment, any contractor who makes a
prohibited expenditure under Title 40 CFR Part 34 or fails to file the required certification or
lobbying forms shall be subject to a civil penalty of not less than$10,000 and not more than
$100,000 for each such expenditure.
Consultant shall ensure that no grant funds awarded under the subsequent contract are used
to engage in lobbying of the Federal Government or in litigation against the United States
unless authorized under existing law. Consultant shall abide by OMB Circular (A-21, A-87,
or A-122), which prohibits the use of Federal grant funds for litigation against the United
States or for lobbying or other political activities.
Byrd Anti-Lobbying Amendment (31 U.S.C. 1352) — Contractors who apply or bid for an
award of more than$100,000 shall file the required certification. Each tier certified to the tier
above that it will not and has not used Federal appropriated funds to pay any person or
organization for influencing or attempting to influence an officer or employee of any agency,
a member of Congress, officer or employee of Congress, or an employee of a member of
13
Congress in connection with obtaining any Federal contract,grant or any other award covered
by 31 U.S.C. 1352. Each tier shall also disclose any lobbying with non-Federal funds that takes
place in connection with obtaining any Federal award. Such disclosures are forwarded from
tier to tier up to the Contractor. [61 FR 6067,Feb. 15, 1996,as amended at 72 FR 2427,Jan.
19,2007]
32. Complete Agreement
This Agreement,including the exhibits,is intended both as a final expression of the Agreement
between the Parties and as a complete and exclusive statement of the terms. In the event of an
inconsistency between a provision in the main body of the Agreement and a provision in the
Exhibits, the provision in the main body of the Agreement shall control. In the event of an
inconsistency between Exhibit A and Exhibit B,Exhibit A shall control.
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/she has read this Agreement, understands it and agrees to be bound by
its terms and conditions.
IN WITNESS WHEREOF,Agency 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 CENTER DE OPMENT AGENCY AMEc ST E R
By:Marry Fine,Agency Manager By:Authorized Contract r Representative
f
Date Date
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EXHIBIT A
SCOPE OF SERVICES
The Consultant shall render professional services as described below:
A. FINALIZE ANALYSIS OF BROWNFIELD CLEANUP ALTERNATIVES (ABCA)
Incorporate DEQ and EPA comments into draft ABCA. Provide copies for 30-day public comment
period, and respond to comments. Finalized ABCA and enter into ACRES
$3,500
B. CLEANUP PLANNING (TASKS 1 —4)
Task 1 —Prepare Site Specific Health and Safety Plan
Consultant will update the existing site-specific Health and Safety Plan(HASP)for the Site.The HASP
will be provided to DEQ for review:, and DEQ comments will be incorporated into the final
document.The estimated cost for Task 1 is $1,000.00.
Task 2—Prepare Quality Assurance Project Plan
Consultant will prepare a Quality Assurance Project Plan (QAPP) for the Site. The QAPP will be
based upon the DEQ and EPA approved QAPP and QAPP addendum which were prepared for the
Agency's Community Wide Assessment (CWA) grant in 2015/2016. The QAPP will be provided to
DEQ and EPA for review, and their comments will be incorporated into the final document. The
estimated cost for Task 2 is $4,000.00.
Task 3—Prepare Sampling and Analysis Plan
Consultant will prepare a Sampling and Analysis Plan (SAP) for the Site.The objective
of the SAP will be to secure regulatory concurrence that the post-excavation closure sampling
program will be sufficient for DEQ to issue a No Further Action (NFA) finding for the Site after
cleanup activities have been completed.The SAP will be based upon the DEQ and EPA approved
SAPs that have been prepared over the past several months for sites being assessed via the Agency's
CWA grant.The SAP will be provided to DEQ and EPA for review, and their comments will be
incorporated into the final document.The estimated cost for Task 3 is $6,000.00.
Task 4—Prepare Remedial Action Plan
Consultant will prepare a Remedial Action Plan (RAP) outlining the overall cleanup
process, and the manner/timing of activities which may affect the local community.The RAP
document will include the following sections:
•Introduction
• Site Description and Background
•Building and Soil Removal/Reuse/Disposal
•Remedial Action Area and Objectives
•Health and Safety
• Cleanup
Confirmation Sampling
•Excavation Backfilling
•Remedial Action Report
• Communication Plan
• Conclusions
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• References
•Limitations
The RAP will be provided to DEQ and EPA for review, and their comments will be incorporated
into the final document. The RAP also will be presented to the public for comment (Task 5 below).
The estimated cost for Task 4 is$3,500.00.
COMMUNITY ENGAGEMENT (TASK 5)
Task 5—Community Engagement Support for RAP (Fact Sheets and Attend a Public
Meeting)
Consultant will prepare fact sheets and attend a public meeting as part of the community engagement
support and public outreach for the Site. Specifically:
• Two Fact Sheets describing the RAP.The first Fact Sheet will be presented at the beginning of the
30 day public comment period on the RAP, and the second Fact Sheet will be presented when the
cleanup is complete (or nearly complete). The Fact Sheets will be designed with text and photos in a
manner that describes the Site assessment results and cleanup process.The Fact Sheets will be suitable
for posting on the Agency's web site and for display during public meetings.
• Attend a public outreach meeting to present the draft RAP and answer any remaining questions
regarding the ABCA.
The estimated cost for this Task is$4,000.00.
RISK ASSESSMENT&INSTITUTIONAL CONTROLS (TASK 6)
Task 6—Prepare Contaminated Media Management Plan (CRIMP)
Consultant will prepare a CMMP for potential contaminated soils,sediment,and/or groundwater that
may be encountered during Site construction activities (e.g. utility line installation). This plan would
be for use by any future Agency employees or contractors that may come in contact with contaminated
media onsite.The CMMP will include media handling procedures,temporary environmental controls,
and transport and disposal requirements.The CMMP will be provided to DEQ and EPA for review,
and their comments will be incorporated into the final
document.The estimated cost for this Task is $4,000.00.
CLEANUP (TASKS 7 AND 8)
Task 7—Prepare Earthwork Contractor Bidding Specifications and Erosion Control Plan;
Contractor bid walk;and procurement support.
Consultant will prepare bidding plans and specifications (to be incorporated into the Agency's overall
building demolition and earthwork contractor procurement package) for Site cleanup activities. The
activities covered by the plans and specifications will include: building and floor slab
demolition/removal, contaminated soil removal and disposal, contaminated media management,
decontamination requirements,and Site security).The plans and specifications will be provided to
DEQ and EPA for review,and their comments will be incorporated into the final documents.It is
anticipated that the selected building demolition contractor will need to get a permit from
Washington County prior to building demolition and that Washington County will require an Erosion
Control Plan (ECP). Consultant will prepare an EPC to be included in the building demolition
contractor's permit application.The EPC will be based on publicly available LIDAR maps of the Site,
and will be structured to be suitable for both Washington County and the permit
likely required from the U.S Army Corps of Engineers (USACE) (see Task 9 below). For example,
because the Site is adjacent to Fanno Creek and a portion of the building extends over Fanno
Creek,turbidity monitoring may be required by USACE. In addition,Amec Foster Wheeler will
16
assist the Agency in conducting a pre-bid Site walk for interested contractors,and in evaluating the
received bids.The estimated cost for this Task is $16,000.00.
Task 8—Prepare Vapor Mitigation System Design (contingent).
Consultant will prepare bidding plans and specifications for installation of a vapor mitigation system.
The system (if still required by DEQ following other cleanup and assessment activities) will include
trenching, piping covered by gravel, a vapor barrier, and solar-powered blower. The plans and
specifications will be provided to DEQ and EPA for review-,and their comments will be incorporated
into the final document. Consultant will assist the Agency in conducting a pre-bid Site walk for
interested contractors, and will assist in evaluating the received bids. In addition, Consultant will
conduct performance testing (smoke tests) of the installed vapor barrier.The estimated cost for this
Task is $10,000.00.
Task 9—Clean Water Act(CWA) Section 404 Permitting.
Consultant will coordinate with the US Army Corps of Engineers (USACE) regarding demolition of
that part of building that overhangs Fanno Creek, and provide the Agency's demolition contractor
with input on their building demolition plan. It is likely that a Section 404 Clean Water Act (CWA)
permit will be required to allow Rork within the ordinary high water mark and its immediate adjacent
area. Construction would consider avoidance of the in-water work fish window, which is species
dependent. The estimated cost for this Task is $8,000.00.
C. CLEANUP (TASKS 1 AND 2)
Task 1 —Field Oversight and Confirmation Sampling During Building Slab and
Contaminated Soil Removal
Consultant will have an environmental scientist on Site to observe the floor-slab removal and
contaminated soil excavation.During these activities the environmental scientist will 1) document the
compliance with the Remedial Action Plan (RAP), 2) attempt to identify the source area(s) of the
halogenated volatile organic compounds (HVOCs) in Site groundwater via visual, instrument,
olfactory, and analytical means 3) collect confirmation closure samples from the limits of the
excavation(s) pursuant to the regulator-approved RAP, and 4) collect soil samples for soil
characteristic testing to facilitate profiling of soils for landfill disposal,as necessary. The estimated
cost for this Task is $5,800.00.
Task 2—Monitored Natural Attenuation (MNA) for Four Quarters
Consultant will conduct an MNA program pursuant to the ABCA, RAP, Quality Assurance Project
Plan (QAPP),and Sampling and Analysis Plan (SAP).This will include:
•Providing a geologist to oversee and log the installation of three groundwater monitoring
wells.
• Survey and development of the monitoring wells.
• Sampling of the wells for four quarters,with testing for HVOCs in all four quarters and testing for
biological parameters (to be detailed in the SAP)in quarters Q1 and Q3.
• Disposal of well development and purge water.
The estimated cost for this Task is $11,300.00.
RISK ASSESSMENT AND INSTITUTIONAL CONTROLS (TASK 3)
Task 3—Prepare Cleanup Report
(Includes Final Risk Assessment and MNA Results);Request NFA
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Consultant will prepare a final cleanup report, v:hich will include a re-evaluation of the Site human
health risk posed by residual HVOCs (particularly trichloroethene [TCE]). The reevaluation of risk
will be based on newly acquired and up-to-date analytical data, and will include comparisons of
groundwater TCE concentrations to DEQ Risk-Based Concentrations (RBCs),which are based upon
a 30-year exposure scenario, and to DEQ short-term exposure limits related to fetal development.
The purpose of the risk re-evaluation will be to determine whether a passive soil vapor mitigation
system will be necessary at the Site.The estimated cost for this Task is$15,500.00.
Each of the aforementioned tasks includes sufficient budget for ancillary project management
activities such as team meetings/discussions and update of EPA's ACRES 5.0 database.
18 �
EXHIBIT B
CONSULTANT'S PROPOSAL
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