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CES NW, Inc ~ C180005 City of Tiprd CONT M `* HANG: 13.125-SW H IBId, Turd, 97223 AVIENDWNTSUNMARY • FIELH-�60 ORDER FOS Fax-(5"U4 °�7 W. ` r(Ig LPOY. Project Title: DOWNTOWN PARK ACQUISITION Project Manager: Sean Farrelly FEASIBILITY Contractor: CESNW,Inc. O ' al Contract#:C180005 Effective Dates: 7/25/2017 to 12/31/2018 Chane Order/Amendment Amount: Accounting Strin : 420-8000-56005 Amendment Percenta e Run 2!n&Total: % AM OETAH Change effective date and duration to December 31,2018 CHANGE ORDER DETAILS UNIT QTY UNIT$ TOTAL$ t l Thr VM,,tMNGI:ORDER/AMENDMENT Project timeline changed UQUEsTM.G dare. A al W.wor— Pate Contractor is hereby authorized by the City of Tigard to performid'11" t. 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 the m work. The unit pricing in the original contract shall apply to all additional work. A copy 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 theproject's FY budget. CITY OF TIGARD,OREGON AMENDMENT TO CONTRACT DOWNTOWN PARgiw.ACQUISITION FEASIBILITY 018004 k AMENDMENT #1 The Agreement between the City of Tigard,a municipal corporation of the State of Oregon,hereinafter called City, and CESNW, Inc. hereinafter referred to as Contractor, entered into on the 11th day of July, 2017,is hereby amended as follows: 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 Jttne 3n�December 31,2018,whichever comes first. All work under this Agreement shall be completed prior to the expiration of this Agreement. 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 TIGARD CESNW,INC. Q469. A&'— Signature Signature 6ACRI lfi�� Anthony R. Weller, President Printed Name Printed Name -4&r�1 0 June 26, 2018 Date Date CITY OF TIGARD,OREGON-CONTRACT SUMMARY FORM THIS FORM MUST ACCOMPANYEYERY CONTRACT) Contract Title: DOWNTOWN PARR AcgUISITION FEASIBILITY Number: L;X�ls Contractor: CESNV'. INC Contract Total: $16.825 Contract Overview- Perform a suryej and preluninary en eering to determine the feasibility of downtoy-n nark acquisition near Fanno Creek Initial Risk Level: ❑ Extreme ❑ High ❑Moderate Q Low Risk Reduction Steps: Risk Comments: Risk Signatw:e- Contract Manager: Sean Farrelly Ext: 2420 Department: CD Type: ❑ Purchase.agreement ❑ Personal Seance ❑ General Sett-ice ❑ Pubhc Improvement ❑ IGA 0 Other: Services Start Date: 7/44/17_ End Date. 6/30/18 he Enjrlv!j _?5 Quotes/Bids/Proposal: FIRM AmouNT/SCORE CESNW. INC 1 Westlake Consultants 2 AKS 3 Account String: Fund-Division-Account Work Order—Activity Tvge Amount FY 17-18 420-8000-56005 628-"0 $16,825 FY G =I4 FY FY FY Approvals - LCRB Date: Department Comments.- Department omments:Department Signature: Purchasing Comments: Purchasing Signature: City Manager Comments: City Manager Signatuic After securing all required approvals,forward original copy to the Contracting and Purchasing Office along with a completed Contract Checklist. Contract Numbe C---,�� CITY OF TIGARD,OREGON ENGINEERING SERVICES AGREEMENT DOWNTOWN PARK ACQUISITION FEASIBILITY THIS AGREEMENT,made and entered into this 11`'day of July,2017,by and between the City of Tigard, a municipal corporation, hereinafter referred to as the "City," and CESNW, INC, whose authorized representative is Tony Weller, and having a principal being a registered engineer of the State of Oregon, hereinafter referred to as the "Engineer." RECITALS WHEREAS, the City's 2017-18 fiscal year budget provides for consulting services for the downtown park acquisition 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 sen ices 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 June 30, 2018,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 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 Sixteen Thousand Eight Hundred Twenty Five and NO/100 Dollars ($16,825.00) 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 shall release the City from any further obligation for payment to the engineer for seri-ice 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. 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 receitiing 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 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. 21 .. 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 have 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 developedin 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 approN al 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 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. 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 sen ices 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. 3 � 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 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 31 st 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 Cit; 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 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 41 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 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 qualitv 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 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. 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 (CG 2010 1185 or equivalent). This coverage shall include Contractual Liability insurance for the indemnity provided under this contract. The following insurance vill 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 Engineer shall obtain, at Engineer's a pense, 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 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 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. 5 � x' 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. A 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$1,000,000 each accident. E. Additional Insured Provision All policies aforementioned, other than Workers' 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. G. Insurance Carrier Rating Coverage provided by the Engineer must be underwritten by an insurance company deemed acceptable by the Cite. All policies of insurance must be written by companies having an.N.M. Best rating of"A-VII" 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 coy erage 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 pro-.ide 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. 6I I. Certificates of Insurance ks 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 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 City as those terms are used in ORS 30.265. K. Prirnary C� overage 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 will 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 ktta: Contracts and Purchasing Office 13125 SW Hall Blvd Tigard, Oregon 97223 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 anv 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 sen-ices 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: 71 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 insolh ent, 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 u ithin the time specified herein or any extension thereof, or 2) If Engineer fails to perform any of the other provisions of this.•:kgreement,or so fails to pursue the,w ork 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 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: 81 Attn: Sean Farrelly Attn: Tony Weller,P.E., P.L.S. _address: 13125 WHO Blvd. Address: 13190 SW 68th Parkway,Suite 150 Tigard, Oregon 97223 Tigard, Oregon 97223 Phone: (503) 718-2420 Phone: (503) 968-6655 Email: , Email: ' 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 pavments 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 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 not 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, unusuaRy 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. 9 � 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 work required under this Agreement without undue delays and without additional cost. 18. Extra (Changes) Work Only the City's Project Manager 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 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 v ith the terms and conditions of this Agreement, and to assure adequate performance and accurate e:_penditures within the contract period. Engineer agrees to permit City. the State of Oregon, the federal go,ernment, 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. 10 25. 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 written. CITY O TIG C ,INC. By: Kenny Ashet, CD Director By: Autholved Contractor Representative /13 ILI Date Date 11 � EXHIBIT A SCOPE OF SERVICES The Engineer shall render professional services as described below: Task1.ALTA Survey--..............................................................................................................$5,600.00 • Topographic survey for the area to be acquired from the adjacent apartment site. The topographic survey area includes additional driveway area to be used in the preliminary engineering task. • A1LTzk sure ey for the area to be acquired from the adjacent apartment site. Task 2. Preliminary Engineering--------------------------------------------------------------------- ----------...............$4,640.00 • Develop the preliminary driveway alignment to accommodate t%o way traffic from the parking lot behind the brewpub. Check with TVFR regarding clearances. • Confirm turning movements for cars and delivery trucks. • Develop preliminary grading plan for the proposed widening. • Confirm the proposed property acquisition is adequate to construct the proposed driveway and prepare memorandum summarizing design assumptions, grades and property needs for proposed widening. Task 3. Legal Description.............................................................................................................$i80.00 • Prepare legal description and map for the property to be acquired for the proposed driveway widening. Task 4.ALT.k Suney for Fanno Creek Property--------------------------------------------------------------------- 5,805.00 • Prepare topographic survey for proposed public area along Fanno Creek. • Prepare ALTA survey for the proposed public area along Fanno Creek. • Prepare legal description and map for the proposed public area along Fanno Creek. 121 '-\\T W June 5, 2017 Mr. Sean Farrelly Redevelopment Project Manager City of Tigard/City Center Development Agency 13125 SW Hall Blvd. Tigard, OR 97223 RE: Proposal for Engineering and Surveying Services: Brewpub Driveway Tigard, Oregon Dear Sean: Thank you for the opportunity to present our proposal to perform engineering and surveying services on the above referenced project. For purposes of this agreement the term "Client" shall refer to City of Tigard/City Center Development Agency and "Engineer" shall refer to CESNW, Inc. The City Center Development Agency desires assistance in developing a new public space adjacent to Fanno Creek. In order to accomplish the public space,the southerly brewpub's driveway will need to be widened to accommodate two-way traffic. Widening the southerly driveway will require some additional property from the neighboring apartment site. Task 1 is an ALTA survey for the property to be acquired from the adjacent apartment site. We have also included additional topographic survey area needed for the preliminary engineering in task 2. Task 2 is the preliminary engineering to confirm the amount of property and any potential issues with the widening of the existing driveway. Task 3 is the legal description and exhibit map for the property to be acquired for the brewpub driveway widening. The proposal also includes an option for additional ALTA/topographic survey for the area of the brewpub property to be acquired for the new public space along Fanno Creek. Our proposed tasks and estimated costs are as follows: Task1. ALTA Survey ................................................................................................$5,600.00 • Topographic survey for the area to be acquired from the adjacent apartment site. The topographic survey area includes additional driveway area to be used in the preliminary engineering task. • ALTA survey for the area to be acquired from the adjacent apartment site. CES1 W,IN i'. 13190 SW 68TH PARKWAY,STE. 150,TIGARD, OR 97223 503.968.6655 TEL 503.968.2595 FAX WWW.CESNW.COM Mr. Sean Farrelly Brewpub Driveway Page 2 of 2 Task 2. Preliminary Engineering .......... ...............................................................$4,640.00 • Develop the preliminary driveway alignment to accommodate two way traffic from the parking lot behind the brewpub. Check with TVFR regarding clearances. • Confirm turning movements for cars and delivery trucks. • Develop preliminary grading plan for the proposed widening. • Confirm the proposed property acquisition is adequate to construct the proposed driveway and prepare memorandum summarizing design assumptions, grades and property needs for proposed widening. Task 3. Legal Description ............................................................................................$780.00 Prepare legal description and map for the property to be acquired for the proposed driveway widening. TOTAL SERVICES ...................................................................$11,020.00 Option A • Prepare topographic survey for proposed public area along Fanno Creek. • Prepare ALTA survey for the proposed public area along Fanno Creek. • Prepare legal description and map for the proposed public area along Fanno Creek. OPTION A SERVICES ...............................................................$5,805.00 We look forward to working with you and are prepared to begin on this project at your convenience. If this proposal is acceptable, please have the authorized signature placed below and return one copy to us. Sincerely, CESNW, INC. Acceptance of Proposal: Anthony R. V '�eller, P.E., P.L.S. President Company: Address: Address: Phone: 3306-CESNW_170605.doc Fax: Date: CESINW, INC. Exhlbit'B' Principal Proj Engr Survey Mngr Survey Tech 2P Survey Crew TOTALS BREWPUB DRIVEWAY 11:1 . ".7 1 (t: ,i♦ City of Tigard/Centra! City Development Agency Firs. Cost Hrs. Cost Hrs. Cost Hrs.1 Cost Hrs.1 Cost Hours Labor Expenses Total Costs Proposed Budget TASK Sub- ALTA Survey 1 Task 1.1 Data Collection & Research $ - $ - 2 $ 220.00 1 $ 75.00 $ - 3 $ 295.00 $ 295.00 1.2 Establish horz&vert control $ - $ - 6 $ 660.00 $ - 10 $ 1,400.00 16 $ 2,060.00 $ 2,060.00 1.3 Topographic survey $ - $ - 1 $ 110.00 7 $ 525.00 8 $ 1,120.00 16 $ 1,755.00 $ 1,755.00 1.4 ALTA Survey $ - $ - 7 $ 770.00 4 $ 300.00 3 $ 420.00 14 $ 1,490.00 $ 1,490.00- 0 $ - $ - Total Task 1 0 $ - 0 $ - 16 $ 1,760.00 12 $ 900.00 21 $ 2,940.00 49 $ 5,600.00 $ - $ 5,600.00 TASK Sub- 2 Task Preliminary Engineering 2.1 Layout driveway alignment 1 $ 160.00 6 $ 720.00 $ - $ - $ - 7 $ 880.00 $ 880.00 2.2 Check turning movements &clearances 1 $ 160.00 6 $ 720.00 $ - $ - $ - 7 $ 880.00 $ 880.00 2.3 Develop Prerninary Gradin 1 $ 160.00 8 $ 960.00 $ - $ - $ - 9 $ 1120.00 $ 1120.00 2.4 Confirm property needs 1 $ 160.00 4 $ 480.00 $ - $ - $ - 5 $ 640.00 $ 640.00 2.5 Summarize design report 2 $ 320.00 4 $ 480.00 $ - $ - $ - 6 $ 800.00 $ 800.00 2.6 Review Mt w/Client 2 $ 320.00 $ - $ - $ - $ - 2 $ 320.00 $ 320.00 0 $ - $--Z.- Total -Total Task 2 8 $ 1,280.00 28 $ 3,360.00 0 $ - 0 $ - 0 $ - 36 $ 4,640.00 $ - $ 4,640.00 TASK. Sub- 3 Task Legal Description 3.1 Legal Description and Exhibit $ - $ - 3 $ 330.00 6 $ 450.00 $ - 9 $ 780.00 $ 780.00 0 $ - $ - Total Task 3 0 $ - 0 $ - 3 $ 330.00 6 $ 450.00 0 $ - 9 $ 780.00 $ - $ 780.00 TOTAL COST 8 $ 1,280.00 28 $ 3,360.00 19 $ 2,090.00 18 $ 1,350.00 21 $ 2,940.00 94 $ 11,020.00 $ - $ 11,020.00 Sub- Public Space ALTA Survey Opt A Task .41 Data Collection & Research $ - $ - 2 $ 220.00 1 $ 75.00 $ - 3 $ 295.00 $ 295.00 .42 Establish horz&vert control $ - $ - 6 $ 660.00 $ - 8 $ 1,120.00 14 $ 1,780.00 $ 1,780.00 .43 Topographic survey $ - $ - 1 $ 110.00 6 $ 450.00 8 $ 1,120.00 15 $ 1,680.00 $ 1,680.00 .44 ALTA Survey $ - $ - 5 $ 550.00 4 $ 300.00 3 $ 420.00 12 $ 1,270.00 $ 1,270.00 45 Legal Descri tion & Exhibit $ - $ - 3 $ 330.00 6 $ 450.00 $ - 9 $ 780.00 $ 780.00 0 $ - 1 $ - Total Option A 0 $ - 1 0 1 $ - 17 $ 1,870.00 17 $ 1,275.00 19 $ 2,660.00 1 -53-1$ 5,805.001 $ - $ 5,805.00 3306-Hours-1 70605.xlsx 6/5/2017 Page 1 of 1 GENERAL CONDITIONS FOR PROFESSIONAL SERVICES 1. Standard of Performance:CESNW shall perform its services in accordance with generally accepted standards presently maintained by other practicing professionals engaged in the same type of work in the general location of the project. CESNW makes no other warranty,expressed or implied. 2. Payment: CESNW prepares billings monthly in proportion to services rendered and considers our statements due and payable by the 10th day after the date of billing. On any amount past due more than 30 days,Client hereby agrees to pay a service charge of two(2)percent from the date of billing. We reserve the right to suspend service if payment is not received within that period and not release any information or plans for which payment has not been made when due. 3. Opinions of Cost:CESNW will use its best professional efforts to provide construction cost estimates based on available information. However,since CESNW has no control over the cost of labor,materials,equipment or services furnished by others,or over contractors'methods of determining prices,or other competitive bidding or market conditions,CESNW's opinions of probable project or construction costs are to be made on the basis of CESNW's experience and represent CESNW's judgement as an experienced and qualified professional,familiar with the construction industry;but CESNW cannot and does not guarantee that proposals, bids or actual project or construction costs will not vary from opinions of probable costs prepared by CESNW. 4. Construction and Safety:CESNW shall not have authority over or responsibility for the means,methods, techniques,sequences or procedures of construction selected by Contractor(s);for safety precautions and programs incident to the work of Contractor(s);or for any failure of Contractor(s)to comply with laws,rules, regulations,ordinances,codes or orders applicable to Contractors(s)furnishing and performing their work. 5. Periodic Construction Observation and Review:CESNW shall make visits to the site at intervals appropriate to the various stages of construction as CESNW deems necessary in order to observe as an experienced and qualified design professional the progress and quality of the various aspects of contractor(s)work. Based on information obtained during such visits and on such observations, CESNW shall endeavor to determine in general if such work is proceeding in accordance with the contract documents and CESNW shall keep CLIENT informed of the progress of the work. The intent of this service is to provide CLIENT a greater degree of confidence that the completed work of contractor(s)will conform generally to the contract documents and that the integrity of the design concept as reflected in the contract documents has been generally implemented and preserved by contractor(s).CESNW shall not,during such visits or as a result of such observations on contractor(s)'work in progress,supervise,direct or have control over contractor(s)'work nor shall CESNW have authority over or responsibility for the means, methods,techniques,sequence or procedures of construction and programs incident to the work of contractor(s) or for any failure of contractor(s)to comply with laws, rules, regulations,ordinances,codes or orders applicable to contractor(s)furnishing and performing their work. Accordingly,CESNW can not guarantee the performance of the construction contracts by contractor(s)nor assume responsibility for contractor(s)failure to furnish and perform their work in accordance with the contract documents. In the event a dispute occurs between CLIENT and contractor,CESNW,shall make initial interpretations of the requirements of the contract documents and judgment of the acceptability of the work thereunder and make findings known to CLIENT and contractor(s)relating to the acceptability of the work or the interpretation of the requirements of the contract documents pertaining to the execution and progress of the work. CESNW shall not be liable for the results of any such interpretations or decisions rendered in good faith. CESNW shall not be responsible for the acts or omissions of any contractor,subcontractor,or supplier,or any of the contractor(s)'or subcontractor's or supplier's agents,employees or any other persons,except CESNW's own employees and agents,at the site or otherwise furnishing or performing any project related work. 6. Preparation of Progress Payments and Recommendations of Payment: CESNW's review of contractor(s)'work for the purposes of recommending payments will not impose on CESNW responsibility to supervise,direct or control such work or for the means,methods,techniques,sequences,or procedures of construction or safety precautions or programs incident thereto or contractor(s)compliance with laws,rules,regulations,ordinances, codes or orders applicable to their furnishing and performing the work. Moreover,recommending payment to CESNW, Inc. Page 2 of 3 contractor does not impose responsibility on CESNW to make any examination to ascertain how or for what purposes any contractor has used the moneys paid on account of the contract price,or to determine that title to any of the work,materials or equipment has passed to CLIENT free and clear of any lien,claims,security interests or encumbrances,or that there may not be other matters at issue between CLIENT and contractor that might affect the amount that should be paid. Such recommendations of payment will constitute a representation to CLIENT,based on such observations and review,that the work has progressed to the point indicated,and that,to the best of CESNW's knowledge, information and belief,the quality of such work is generally in accordance with the contract documents subject to an evaluation of such work as a functioning whole and subject to the results of any subsequent tests called for in the contract documents and to any other qualifications stated in the recommendation. In the case of unit price work,CESNW's recommendations of payment will include final determinations of quantities and classifications of such work subject to any subsequent adjustments allowed by the contract documents. By recommending any payment CESNW will not thereby be deemed to have represented that exhaustive, continuous or detailed reviews or examinations have been made by CESNW to check the quality or quantity of contractor(s)work. i. Reuse of Documents:All documents,including drawings and specifications,prepared by CESNW pursuant to this Agreement shall be the property of CESNW and are instruments of service in respect of the project. They are not intended or represented to be suitable for reuse by CLIENT or others on extensions of the services provided for the intended project or on any other project. Any reuse without written verification or adaptation by CESNW for the specific purpose intended will be at CLIENT's sole risk and without liability or legal exposure to CESNW. Any such verification or adaptation will entitle CESNW to further compensation at rates to be agreed upon by CLIENT and CESNW. 8. Electronic Media: Electronic representations of the project may be a part of or used in the preparation of the instruments of service. Because minor hand modifications may be made to the hard copy,the hard copy is considered to be"original"instrument of service. CESNW shall not be held liable in the event of inconsistencies between the hard copy and the electronic data. CESNW recognizes that the CLIENT may,from time to time,request the delivery of and retain copies of electronic drawings. The original electronic files will be retained by CESNW. Due to the potential that the information set forth in the electronic files can be modified by the others,unintentionally or otherwise,CESNW reserves the right to remove all reference to its ownership and/or involvement from each file. The CLIENT shall be responsible for determining the compatibility of CESNW's electronic files with the CLIENT's software. CESNW makes no warranty as to the compatibility of it's files with the CLIENT's software. Any such use or reuse by the CLIENT or others, without written verification or adaptation by CESNW for the specific purpose intended will be at the CLIENT's sole risk and without liability or legal exposure to CESNW. Because data stored on electronic media can deteriorate undetected,the CLIENT agrees that CESNW will not be responsible to replace copies of the electronic media after an acceptance period of 90 days from the date of delivery of the electronic files. 9. Clients Indemnification: Client agrees to defend, indemnify,and hold harmless CESNW and its shareholders, directors,officers,employees and agents from and against: a. Any and all costs and expenses,including legal fees and costs,incurred by CESNW if asked or required to assist Client in any litigation,arbitration,or other proceeding relating to the project or the work under this agreement; b. Any and all damages or deficiencies resulting from any material breach of warranty,or covenant,or nonfulfillment of any agreement on the part of Client under this agreement; C. Any and all claims,liabilities,and obligations of every kind and description,contingent or otherwise, arising out of or related to Client's project except for claims,liabilities,and obligations of CESNW expressly assumed by CESNW under this agreement or paid by insurance maintained by CESNW,CESNW' shareholder employees or by Client; d. Any and all claims related to CESNW being joined in any lawsuit for design or construction services that are beyond our scope of services or direct responsibility; CESNW, Inc. Page 3 of 3 e. Any and all claims,liabilities,obligations of every kind and description,contingent or otherwise,and litigation expenses arising out of or relating to Title III legislation, Endangered Species Act claims or claims under similar federal,state,or local legislation or rule relating to the project or the work under this agreement. f. Any and all claims, losses,damages,and costs(including but not limited to court or other dispute resolution costs and the time of engineer/surveyor expended in defense of such claims)caused by,arising out of,or relating to the presence,discharge,dispersal,release or escape of environmental hazard(s)at, on,under or from the project site,to the fullest extent permitted by law. 10. Attorney's Fees and Expenses: In the event suit or action is instituted to enforce any of the terms or conditions of this Agreement,the losing party shall pay to the prevailing party,in addition to the costs and disbursements allowed by judgments,such sum as the court may adjudge reasonable as attorney's fees in such suit or action, in both trial court and appellate courts. 11. Waiver: No waiver of a breach of any covenant,term or condition of this Agreement shall be a waiver of any other or subsequent breach of the same or any other covenant,term or condition or a waiver of the covenant, term or condition itself. 12. Controlling Law:This Agreement shall be governed by the laws of the State of Oregon. 13. Termination: Either party may terminate this Agreement at any time upon fourteen days prior written notice to the other party. Client may temporarily discontinue work on the project without causing a termination of this Agreement. In the event CLIENT requests termination of the work prior to completion,CESNW reserves the right to complete such analysis and records as may be necessary to place its files in order and,where considered necessary to protect its professional reputation,to complete a report on work performed to date. If CESNW is not then in breach of this contract,the CLIENT shall pay CESNW the costs for placing its files in order,completion of its report on work performed to date,and costs of transferring files to Client. 14. Successors and Assigns:The covenants,agreements and obligations of this Agreement shall extend to and be binding upon and inure to the benefit of the partners,heirs,personal representatives and assigns of the parties hereto. Neither CLIENT nor CESNW shall assign,sublet or transfer any rights under or interest in(including, but without limitation,moneys that may become due or moneys that are due)this agreement without the written consent of the other,except to the extent that any assignment,subletting or transfer is mandated by law or the effect of this limitation may be restricted by law. Nothing under this agreement shall be construed to give any rights or benefits in this agreement to anyone other than CLIENT and CESNW,and all duties and responsibilities undertaken pursuant to this agreement will be for the sole and exclusive benefit of CLIENT and CESNW and not for the benefit of any other party. Nothing contained in this agreement shall prevent CESNW from employing,with prior written consent of CLIENT,such independent professional associates and consultants as CESNW may deem appropriate to assist in the performance of services hereunder. CESNW, Inc.