Fishman Environmental Services - Derry Dell Creek Sewer Realignment - Amendment #1 City of Tigard
13125 SW Hall Blvd.
Tigard, OR 97223
Phone: 503-639-4171
Fax:503-684-7297
Amendment No. 1 to Personal Services Contract
Contract Title: Personal Services Contract– 110th Ave Sanitary Sewer Realignment -
Derry Dell Creek-Renamed to: Derry Dell @ 110th Ave Sanitary Sewer
Realignment)
File# SS 02-18— Amendment# 1
Consultant: Fishman Environmental Services,LLC
434 NW Sixth Ave, Suite 304
Portland, OR 97209-3600
Date original contract signed: December 17, 2001
1. The above Personal Services Contract with Fishman Enviornmental Services, LLC shall be
amended as per the attached agreement for additional services dated May 30, 2003. Scope of
Service will be as outlined.in,that,agreement. Contract date:will be extended to June 30,
2004.
2. In performing the above, it is understood and agreed that all other terms and conditions of the
original contract are still in effect.
3. Compensation for this amendment will be an amount not to exceed $3,500. Any additional
amounts over-and above the $3,500 will require written authorization_ by the CIP Engineering
Manager.
Original Contract Amount $ 6,300.00
Amendment# 1 $ 3,500.00
Total Contract Amount $ 9,800.00
Accepted by: C SAY
Fishman Environmental Services LLC Title
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Date
City of Tigard
Authorized by: $ 0�
Vannie T. Ngu�yenj , IP Engineering Manage' Date
Approved by: QLU.V_�
Agustin uenas, P.E.,City Engineer
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Fishman Environmental Services, LLC
CONSULTANTS IN ECOLOGY AND NATURAL RESOURCE MANAGEMENT
WETLAND SERVICES
May 30, 2003
Vannie Nguyen, CIP Engineering Manager
City of Tigard
13125 SW Hall Boulevard
Tigard, Oregon 97223
PROJECT: 1 10"'Avenue Sanitary Sewer Realignment- Deny Dell Creek
Project Inspection, Maintenance, and Monitoring(FES Project 02025)
CWS File 1965; Corps Permit 2002-00290; DSL State Application Number
25375-NSP (no state permit needed)
UNDERSTANDING OF PROJECT:
The project is the 1100' Avenue sanitary sewer realignment at Derry Dell Creek. Fishman
Environmental Services, LLC (FES) delineated the wetland, obtained the wetland permits, and
designed the wetland and vegetated corridor enhancement plan for this project. The City of Tigard
will be sending this project out to bid for construction this July. We have prepared a proposal to
conduct construction oversight, and complete the inspection, maintenance, and monitoring for the
2 year period required by Clean Water Services (CWS).
The only thing lacking in the documents submitted to CWS,the Division of State Lands,and the U.S.
Army Corps of Engineers is the total number ofplants to be installed.As stated in the Enhancement
Plan prepared by FES,the required enhancement area is the vegetated corridor portion ofthe 15-foot
wide construction easement. We proposed to enhance the 15 foot wide sewer easement and the
vegetated corridor north to Eden Court(approx.350 feet)and south to the end of the City-owned tax
lot 4900(approximately 400 feet)to avoid immediate re-invasion by invasive plants.The vegetated
corridor varies from 5 - 15 feet wide on both sides of the stream; we have estimated the number of
- plants bused on an average 10-foot width, and have calculated the following totals:
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434 NW Sixth Avenue,Suite 304 Portland OR 97209-3600 phone 503-224-0333 fax 503 224 1851 www.fishenserv.com
05/30/03 09:29 FAX 5032. 51 FIST{ FAX 14j 63 -
scieiiti5c Nath Common Size spacing` Total . Planting
Name Number Location
Acer big-leaf 1 gallon 10-20 feet on center,spacing 10 vegetated
macrophyllum maple minimum dependent upon location of corridor
existing trees
Fraxinus latijolia Oregon ash 1 gallon 15 feet on center 10 wetland
minimum
Rubus spectabilis salmonberry 1 gallon 5 - 8 feet on center 25 vegetated
corridor
Salix sitchenris Si."willow stakes 8 feet on center;both sides of 6 along top of
stream stream bank
Symphoricarpos snowberry 1 gallon groups of 3;5 feet on center 60 vegetated
albus
corridor
T7euja plicates western red 1 gallon 10-20 feet on center;spacing 25 vegetated
cedar minimum dependent upon location of corridor
existing trees
Construction oveisight,will be. conducted.to.T ensure that invasive plant.(Himalayan blackberry,
bittersweet nightshade,English ivy,English holly)are properly removed and that the specified plants
are properly installed. Site maintenance.is.essential for the success of mitigation projects. FES
provides native landscape management services to improve the success of mitigation projects,
including early detection of potential problems such as.invasive species, wildlife damage, and
irrigation needs and implementation of corrective and preventive measures. Yonitoring of the
success of the enhancement will begin the year after plant installation and will be conducted for 2
years to meet CWS requirements.
SCOPE OF FES SERVICES:
Task 1) Construction Oversight
A Fishman Environmental Services representative will coordinate with the selected
contractor to provide construction oversight of invasive species removal and the installation
of plants.We estimate 3 site visits for this task: 1 for identification of invasive species to be
removed and to identify locations to install plants;a second to inspect and count plants;and
a third visit if necessary to inspect any rectification of planting problems.
Task 2)Annual Inspection�tind Maintenance ;\�
As stated in the Ma nteriance-Plan, CWS requires a two year maintenance period for
vegetated corridor mitigation.Weed control is to be conducted twice per year.The first weed
control site visit is to be conducted by June I", and the second weed control site visit is to
be conducted by September 30'for two years following planting. Invasive species are to be
controlled as described above in the Planting Plan,which includes invasive species removal
by a combination ofinechanical and chemical treatments to control their spread(cut and clear
Fishman Environmental Services, LLC Derry Dell Creek Monitoring FES 02025 Page 2
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top growth of invasive species in the spring or early summer, and target spray or paint new
growth as it emerges with RodeoTTM. Repeat cutting and spraying as needed.) Impacts to
desirable-native herbaceous and shrub species..will be mimis
nied to the extent.practicable-
during weed control activities.
Task 3) Monitoring
Monitoring will begin in the late spring or early summer following plant installation. We
recommend installing the plantings of fall 2003.FES will install semi-permanent monitoring
transects in each plant community type in.the mitigation area to provide a representative
sampling of all plant species. Woody vegetation will be sampled,using block transects.
Transect dimrtensions will vary with specific site conditions but typically will be`10 by 50 feet.
Every tree and shrub within the block transect will be evaluated for vigor and height. The
percent survival will be calculated based on the number of living woody species observed on
the transect and original planting densities. Dominant herbaceous species and approximate
percent cover will be documented. Photo-points will be installed at each transect, and
photographs will be taken to document annual changes in order to compile a photographic
record of plant succession on the site.
Task 4) Annual Reporting
We will prepare annual reports documenting site conditions, including vegetation survival
and succession. Monitoring reports will include summary tables for each transect tracking
the growth and survival ofwoody species throughout,themonitoring period.Reports will also.
-include an analysis of the success of mitigation; site inanagement' issues and replanting
recommendations,if necessary. Mitigation success will be evaluated according to the CWS
success criterion for mitigation sites,which is 80% survival of all tree and shrub plantings.
The mitigation site is to be monitored annually to assess survival of tree and shrub plantings.
If any mortality is noted on the site, the factor likely to have caused mortality of plantings
(i.e. animal damage, etc.) is to be determined if possible. If survival falls below 80%o at any
time during the two year monitoring period, the mitigation site will need to replanted, and
other corrective measures,such as additional protection against animal damage,mulching or
irrigation,may need to be implemented.If replanting is necessary,the monitoring period will
be extended for two years from the time of replanting to ensure that the site meets the 80%
survival criterion.
Fishman Environmental Services, LLC Derry Dell Creek Monitoring FES 02025 Page 3
05/30/03 09: 29 FAX 5032 351 FISH FAX
�rc� or,�cy
COST ESTIMATE: U. O
Task 1-) Construction Oversight " " = �► $ 2,200 .
Task 2) Annual Inspection and Maintenance (� D ' $xW($800 first year,"$600 following yr)
Task 3) Establish transects/Monitoring 00 $2rgO&($1,500/11"year, $1,000 following yr)
Task 4) Data analysis&Reporting I Zoo$�;9A@�$1,200/1 st year, $800 following yr)
Project Management - 1p x($250/year)
Expenses(mileage, field supplies,photos, �. �
Total Not-to-Exceed $6�2 �/Zw
90100
SCHEDULE t �t wi a con u��' — '
Construction oversighed as necessary this summer through fall. Maintenance will
be conducted prior to the end ofJune.and September each year.Monitoring will be conducted in the
late spring or early summer each year.The monitoring report will be completed and submitted to the
regulatory agencies by December 31"of each year.
RESPONSIBILITMS OF CITY OF TIGARD:
1)Project coordination
2) Have contractor provide as-built planting plan
TERMS:
Services will be billed,on a time and materials basis through tlie''end of ih'e ionth in accordance with
our current fee schedule. Balance is due upon receipt of monthly invoices. Consultant agrees to
perform consulting services with that standard of care, skill, and diligence normally provided by a
professional in the performance of similar environmental consulting services. Note: Owner and
employees ofFishman Environmental Services,LLC are covered by general and professional liability
insurance($1,000,000); employees are covered by Worker's Compensation ins
prance; certificates
of insurance will be provided upon request. This proposal is valid for a period of 90 days.
Thank you for this opportunity to work on this project. Please do not hesitate to call with any
questions.
Prepared by:
Stacy N. Benjamin
Wetland Ecologist, Wetland/Environmental Assessment Project Manager
C. Mirth Walker, PWS
Senior Wetland Ecologist,Wetlands Program Manager
Mark Vlahakis
Soil Scientist, Habitat Enhancement and Restoration Specialist
G:\2002\02025\monitoring.proposal_revised.wpd
Fishman Environmental Services,LLC Derry Dell Creek Monitoring FES 02025 Page 4
CITY OF TIGARD,OREGON
PERSONAL SERVICES CONTRACT
THIS AGREEMENT made and entered into this 14th day of December, 2001 by and between the
CITY OF TIGARD, a municipal corporation of the State of Oregon, hereinafter called CITY, and
Fishman Environmental Services, LLC, 434 NW Sixth Avenue, Suite 304, Portland, OR
97209-3600,hereinafter called CONSULTANT.
WITNESSETH
WHEREAS, CITY has need for the services of a company with a particular training, ability,
knowledge, and experience possessed by CONSULTANT, and
WHEREAS, City has determined that Fishman Environmental Services, LLC is qualified and
capable of performing the professional services as CITY does hereinafter require,under those terms
and conditions set forth:
NOW, THEREFORE, in consideration of the mutual covenants contained herein, the parties agree
as follows:
1. SERVICES TO BE PROVIDED:
CONSULTANT shall initiate services immediately upon receipt of CITY'S notice to
proceed, together with an executed copy of this Agreement. CONSULTANT agrees to
complete work which is detailed in Exhibit "A" and by this reference made a part hereof.
2. EFFECTIVE DATE AND DURATION:
-- This Agreement shall-become effective upon the date of execution, and shall expire, unless
otherwise terminated or extended, on June 30, 2002. All work under this Agreement shall
be completed prior to the expiration of this Agreement.
3. COMPENSATION:
CITY agrees to pay CONSULTANT not to exceed$6,300 for performance of those services
described herein,which payment shall be based upon the following applicable terms:
a. Payment by CITY to CONSULTANT for performance of services under this
Agreement includes all expenses incurred by CONSULTANT, with the exception of
expenses, if any, identified in this Agreement as separately reimbursable.
b. Payment will be made in installments based on CONSULTANT'S invoice, subject
to the approval of the City Manager, and not more frequently than monthly.
Payment shall be made only for work actually completed as of the date of invoice.
Personal Services Contract—110 'Ave Sanitary Sewer Realignment—Derry Dell Creek
Page 1
C. Payment by CITY shall release.CITY from any further obligation for payment to
CONSULTANT, for services performed or expenses incurred as of the date of the
invoice. Payment shall not be considered acceptance or approval of any work or
waiver of any defects therein.
d. CONSULTANT shall make payments promptly, as due, to all persons supplying
labor or materials for the prosecution of this work.
e. CONSULTANT shall not permit any lien or claim to be filed or prosecuted against
the CITY on any account of any labor or material furnished.
f. CONSULTANT shall pay to the Department of Revenue all sums withheld from
employees pursuant to ORS 316.167.
g. If CONSULTANT fails, neglects or refuses to make prompt payment of any claim
for labor or services furnished to CONSULTANT or a subcontractor by any person
as such claim becomes due, CITY'S Finance Director may pay such claim and
charge the amount of the payment against funds due or to become due the
CONSULTANT. The payment of the claim in this manner shall not relieve
CONSULTANT or their surety from obligation with respect to any unpaid claims.
h. CONSULTANT shall pay employees at least time and a half pay for all overtime
worked in excess of 40 hours in any one week except for individuals under the
contract who are excluded under ORS 653.010 to 653.261 or under 29 USC sections
201 to 209 from receiving overtime.
i. CONSULTANT shall promptly, as due, make payment to any person, co-
partnership, association or corporation, furnishing medical, surgical and hospital
care or other needed care and attention incident to sickness or injury to the
employees of CONSULTANT or all sums which CONSULTANT agrees to pay for
such services and all moneys and sums which CONSULTANT collected or
deducted from the wages of employees pursuant to any law, contract or agreement
for the purpose of providing or paying for such service.
j. The CITY certifies that sufficient funds are available and authorized for expenditure
to finance costs of this contract.
4. OWNERSHIP OF WORK PRODUCT:
CITY shall be the owner of and shall be entitled to possession of any and all work products
of CONSULTANT which result from this Agreement, including any computations, plans,
correspondence or pertinent data and information gathered by or computed by
CONSULTANT prior to termination of this Agreement by CONSULTANT or upon
completion of the work pursuant to this Agreement.
Personal Services Contract—110th Ave Sanitary Sewer Realignment—Derry Dell Creek
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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, CONSULTANT shall be fully responsible for the acts or
omissions of any subcontractors and of all persons employed by them, and neither the
approval by CITY of any subcontractor nor anything contained herein shall be deemed to
create any contractual relation between the subcontractor and CITY.
6. STATUS OF CONSULTANT AS INDEPENDENT CONSULTANT:
CONSULTANT certifies that:
a. CONSULTANT acknowledges that for all purposes related to this Agreement,
CONSULTANT is and shall be deemed to be an independent contractor as defined
by ORS 670.700 and not an employee of CITY, shall not be entitled to benefits of
any kind to which an employee of CITY is entitled and shall be solely responsible
for all payments and taxes required by law. Furthermore, in the event that
CONSULTANT is found by a court of law or any administrative agency to be an
employee of CITY for any purpose, CITY shall be entitled to offset compensation
due, or to demand repayment of any amounts paid to CONSULTANT under the
terms of this Agreement, to the full extent of any benefits or other remuneration
CONSULTANT receives (from CITY or third party) as a result of said finding and
to the full extent of any payments that City is required to make (to CONSULTANT
or to a third party)as a result of said finding.
b. The undersigned CONSULTANT hereby represents that no employee of the CITY,
or any partnership or corporation in which a CITY employee has an interest, has or
will receive any remuneration of any description from CONSULTANT, either
--- - directly or indirectly, in connection with the letting or performance of this
Agreement, except as specifically declared in writing.
If this payment is to be charged against Federal finds, CONSULTANT certifies that
he or she is not currently employed by the Federal Government and the amount
charged does not exceed his or her normal charge for the type of service provided.
CONSULTANT and its employees, if any, are not active members of the Oregon
Public Employees Retirement System and are not employed for a total of 600 hours
or more in the calendar year by any public employer participating in the Retirement
System.
C. CONSULTANT certifies that it currently has a CITY business license or will obtain
one prior to delivering services under this Agreement.
d. CONSULTANT is not an officer, employee, or agent of the CITY as those terms are
used in ORS 30.265.
Personal Services Contract—110''Ave Sanitary Sewer Realignment—Derry Dell Creek
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7. INDEMNIFICATION:
CITY has relied upon the professional ability and training of CONSULTANT as a material
inducement to enter into this Agreement. CONSULTANT warrants that all its work will be
performed in accordance with generally accepted professional practices and standards as
well as the requirements of applicable federal, state and local laws, it being understood that
acceptance of a consultant's work by CITY shall not operate as a waiver or release.
CONSULTANT agrees to indemnify and defend the CITY, its officers, agents and
employees and hold them harmless from any and all liability, causes of action, claims,
losses, damages,judgments or other costs or expenses including attorney's fees and witness
costs and(at both trial and appeal level,whether or not a trial or appeal ever takes place)that
may be asserted by any person or entity which in any way arise from, during or in
connection with the performance of the work described in this contract, except liability
arising out of the sole negligence of the CITY and its employees. Such indemnification
shall also cover claims brought against the CITY under state or federal worker's
compensation laws. If any aspect of this indemnity shall be found to be illegal or invalid for
any reason whatsoever, such illegality or invalidity shall not affect the validity of the
remainder of this indemnification.
8. INSURANCE:
CONSULTANT and its subcontractors shall maintain insurance acceptable to CITY in full
force and effect throughout the term of this contract. Such insurance shall cover all risks
arising directly or indirectly out of CONSULTANT'S activities or work hereunder,
including the operations of its subcontractors of any tier. 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 CONSULTANT and its subcontractor
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 Damage on an "occurrence" form (1986 ISO or
equivalent). This coverage shall include Contractual Liability insurance for the
indemnity provided under this contract. The following insurance will be carried:
Coverage Limit
General Aggregate 1,000,000
Products-Completed Operations Aggregate 1,000,000
Personal &Advertising Injury 1,000,000
Each Occurrence 1,000,000
Fire Damage (Any one fire) 50,000
Medical Expense (Any one person) 5,000
Personal Services Contract— 110th Ave Sanitary Sewer Realignment—Derry Dell Creek
Page 4
b. Commercial Automobile Insurance
CONSULTANT shall also obtain, at consultant's expense, and keep in effect
during the term of the contract, "Symbol 1" Commercial Automobile Liability
coverage including coverage for all owned, hired, and non-owned vehicles. The
Combined Single Limit per occurrence shall not be less than $1,000,000.
C. 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 to obtain
such coverage." This shall include Employer's Liability Insurance with coverage
limits of not less than $100,000 each accident.
d. Additional Insured Provision
' The City of Tigard, Oregon, its officers, directors, and employees shall be added
as additional insureds with respect to this contract. All Liability Insurance
policies will be endorsed to show this additional coverage.
e. Notice of Cancellation
There shall be no cancellation, material change, exhaustion of aggregate limits or
— intent not-to-renew insurance coverage without 30 days written notice to the
CITY. Any failure to comply with this provision will not affect the insurance
coverage provided to the City. The 30 days notice of cancellation provision shall
be physically endorsed on to the policy.
f. Insurance Carrier Rating
Coverage provided by the CONSULTANT must be underwritten by an insurance
company deemed acceptable by the CITY. The CITY reserves the right to reject
all or any insurance carrier(s)with an unacceptable financial rating.
g. Certificates of Insurance
As evidence of the insurance coverage required by the contract, the consultant
shall furnish a Certificate of Insurance to the CITY. No contract shall be effected
until the required certificates have been received and approved by the CITY. The
certificate will specify and document all provisions within this contract. A
Personal Services Contract—I I&Ave Sanitary Sewer Realignment—Derry Dell Creek
Page 5
renewal certificate will be sent to the above address 10 days prior to coverage
expiration.
h. Independent Consultant Status
The service or services to be rendered under this contract are those of an
independent consultant. CONSULTANT is not an officer, employee or agent of
the CITY as those terms are used in ORS 30.265.
i. Primary Coverage Clarification
All parties to this contract hereby agree that the.CONSULTANT'S coverage will
be primary in the event of a loss.
j. Cross-Liability Clause
A cross-liability clause or separation of insureds clause will be included in all
general liability, professional liability, pollution and errors and omissions policies
required by this contract.
CONSULTANT'S insurance policy shall contain provisions that such policies shall not be
canceled or their limits of liability reduced without thirty(30) days prior notice to CITY. A
copy of each insurance policy, certified as a true copy by an authorized representative of the
issuing insurance company,or at the discretion of CITY, in lieu thereof, a certificate in form
satisfactory to CITY certifying to the issuance of such insurance shall be forwarded to:
Vannie T.Nguyen,P.E.
City of Tigard
13125 SW Hall Blvd.
Tigard, Oregon 97223
Such policies or certificates must be delivered prior to commencement of the work. Ten
days cancellation notice shall be provided CITY by certified mail to the name at the address
listed above in event of cancellation or non-renewal of the insurance.
The procuring of such required insurance shall not be construed to limit 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. METHOD AND PLACE OF GIVING NOTICE, SUBMITTING BILLS AND MAKING
PAYMENTS.
All notices,,bills and payments shall be made in writing and may be.given by personal
delivery or by mail. Notices, bills and payments sent by mail should be addressed as
follows:
Personal Services Contract—110''Ave Sanitary Sewer Realignment—Derry Dell Creek
Page 6
CITY OF TIGARD
Vannie T.Nguyen, P.E.
13125 SW Hall Blvd.
Tigard, Oregon 97223
CONSULTANT
Fishman Environmental Services, LLC
434 NW Sixth Ave Suite 304
Portland,OR 97209-3600
and when so addressed, shall be deemed given upon deposit in the United States mail,
postage prepaid. In all other instances,notices,bills and payments shall be deemed given at
the time of actual delivery. Changes may be made in the names and addresses of the person
to whom notices,bills and payments are to be given by giving written notice pursuant to this
paragraph.
10. 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.
11. PROFESSIONAL SERVICES:
The CITY requires that services provided pursuant to this agreement shall be provided to the
CITY by a CONSULTANT which does not represent clients on matters contrary to CITY
interests. Further, CONSULTANT shall not engage services of an attorney and/or other
professional who individually, or through members of his/her same firm, represents clients
on matters contrary to CITY interests.
Should the CONSULTANT represent clients on matters contrary to CITY interests or
engage the services on an attorney and/or other professional who individually, or through
members of his/her same firm, represents clients on matters contrary to CITY interests,
CONSULTANT shall consult with the appropriate CITY representative regarding the
conflict.
After such consultation, the CONSULTANT shall have ten 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 13 (b- iii)of this agreement.
12. TERMINATION WITHOUT CAUSE:
At any time and without cause, CITY shall have the right in its sole discretion, to terminate
this Agreement by giving notice to CONSULTANT. If CITY terminates the contract
pursuant to this paragraph, it shall pay CONSULTANT for services rendered to the date of
termination.
Personal Services Contract—1100'Ave Sanitary Sewer Realignment—Derry Dell Creek
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13. TERMINATION WITH CAUSE:
a. CITY may terminate this Agreement effective upon delivery of written notice to
CONSULTANT, or at such later date as may be established by CITY, under any of
the following conditions:
i. If CITY funding from federal, state, local, or other sources is not obtained
and continued at levels sufficient to allow for the purchase of the indicated
quantity of services. This Agreement may be modified to accommodate a
reduction in funds
ii. If federal or state regulations or guidelines are modified, changed, or
interpreted in such a way that the services are no longer allowable or
appropriate for purchase under this Agreement.
iii. If any license or certificate required by law or regulation to be held by
CONSULTANT, its subcontractors, agents, and employees to provide the
services required by this Agreement is for any reason denied, revoked, or not
renewed.
iv. If CONSULTANT becomes insolvent, if voluntary or involuntary petition in
bankruptcy is filed by or against CONSULTANT, if a receiver or trustee is
appointed for CONSULTANT, or if there is an assignment for the benefit of
creditors of CONSULTANT.
Any such termination of this agreement under paragraph (a) shall be without prejudice to
any obligations or liabilities of either party already accrued prior to such termination.
b. CITY, by written notice of default (including breach of contract) to
CONSULTANT,may terminate the whole or any part of this Agreement:
i. If CONSULTANT fails to provide services called for by this agreement
within the time specified herein or any extension thereof,or
ii. If CONSULTANT fails to perform any of the other provisions of this
Agreement, or so fails to pursue the work as to endanger performance of this
agreement in accordance with its terms, and after receipt of written notice
from CITY, fails to correct such failures within ten (10) days or such other
period as CITY may authorize.
iii. If CONSULTANT fails to eliminate a conflict as described in Section 11
of this agreement.
The rights and remedies of CITY provided in the above clause related to defaults (including
breach of contract) by CONSULTANT shall not be exclusive and are in addition to any
other rights and remedies provided by law or under this Agreement.
Personal Services Contract—11&Ave Sanitary Sewer Realignment—Derry Dell Creek
Page 8
If CITY terminates this Agreement under paragraph (b), CONSULTANT shall be entitled to
receive as full payment for all services satisfactorily rendered and expenses incurred, an
amount which bears the same ratio to the total fees specified in this Agreement as the
services satisfactorily rendered by CONSULTANT bear to the total services otherwise
required to be performed for such total fee; provided, that there shall be deducted from such
amount the amount of damages, if any, sustained by CITY due to breach of contract by
CONSULTANT. Damages for breach of contract shall be those allowed by Oregon law,
reasonable and necessary attorney fees, and other costs of litigation at trial and upon appeal.
14. ACCESS TO RECORDS:
CITY shall have access to such books, documents, papers and records of CONSULTANT
as are directly pertinent to this Agreement for the purpose of making audit, examination,
excerpts and transcripts.
15. FORCE MAJEURE:
Neither CITY nor CONSULTANT shall be considered in default because of any delays in
completion and responsibilities hereunder due to causes beyond the control and without
fault or negligence on the part of the parties so disenabled, including but not restricted to, an
act of God or of a public enemy, civil unrest, volcano, earthquake, fire, flood, epidemic,
quarantine restriction, area-wide strike, freight embargo, unusually severe weather or delay
of subcontractor or supplies due to such cause; provided that the parties so disenabled shall
within ten (10) days from the beginning of such delay, notify the other party in writing of
the cause of delay and its probable extent. Such notification shall not be the basis for a
claim for additional compensation. Each party shall,however,make all reasonable efforts to
remove or eliminate such a cause of delay or default and shall, upon cessation of the cause,
diligently pursue performance of its obligation under the Agreement.
16. NON-WAIVER:
The failure of CITY to insist upon or enforce strict performance by CONSULTANT of any
of the terms of this Agreement or to exercise any rights hereunder, should not be construed
as a waiver or relinquishment to any extent of its rights to assert or rely upon such terms or
rights on any future occasion.
17. NON-DISCRIMINATION:
CONSULTANT agrees to comply with all applicable requirements of federal and state civil
rights and rehabilitation statues, rules, and regulations. CONSULTANT also shall comply
with the Americans with Disabilities Act of 1990, ORS 659.425, and all regulations and
administrative rules established pursuant to those laws.
18. ERRORS:
CONSULTANT shall perform such additional work as may be necessary to correct errors in
the work required under this Agreement without undue delays and without additional cost.
Personal Services Contract—110''Ave Sanitary Sewer Realignment—Derry Dell Creek
Page 9
19. EXTRA(CHANGES)WORK:
Only the CIP Engineering Manager may authorize extra (and/or changes) work. Failure of
CONSULTANT to secure authorization for extra work shall constitute a waiver of all right
to adjustment in the contract price or contract time due to such unauthorized extra work and
CONSULTANT thereafter shall be entitled to no compensation whatsoever for the
performance of such work.
20. WARRANTIES:
All work shall be guaranteed by CONSULTANT for a period of one year after the date of
final acceptance of the work by the owner. CONSULTANT warrants that all practices and
procedures, workmanship and materials shall be the best available unless otherwise
specified in the profession. Neither acceptance of the work nor payment therefore shall
relieve CONSULTANT from liability under warranties contained in or implied by this
Agreement.
21. ATTORNEY'S FEES:
In case suit or action is instituted to enforce the provisions of this contract, the parties agree
that the losing party shall pay such sum as the court may adjudge reasonable attorney fees
and court costs,including attorney's fees and court costs on appeal.
22. 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.
23. COMPLIANCE WITH APPLICABLE LAW:
CONSULTANT shall comply with all federal, state, and local laws and ordinances
applicable to the work under this Agreement, including those set forth in ORS 279.310 to
279.320.
24. 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.
25. AUDIT:
CONSULTANT shall maintain records to assure conformance with the terms and
conditions of this Agreement,and to assure adequate performance and accurate expenditures
within the contract period. CONSULTANT agrees to permit CITY,the State of Oregon, the
Personal Services Contract—11e Ave Sanitary Sewer Realignment—Derry Dell Creek
Page 10
federal government, or their duly authorized representatives to audit all records pertaining to
this Agreement to assure the accurate expenditure of funds.
26. 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.
27. COMPLETE AGREEMENT:
This Agreement and attached exhibits constitutes the entire Agreement between the parties.
No waiver, consent, modification, or change of terms of this Agreement shall bind either
party unless in writing and signed by both parties. Such waiver, consent, modification, or
change if made, shall be effective only in specific instances and for the specific purpose
given. There are no understandings, agreements, or representations, oral or written, not
specified herein regarding this Agreement. CONSULTANT, by the signature of its
authorized representative, hereby acknowledges that he has read this Agreement,
understands it and agrees to be bound by its terms and conditions.
IN WITNESS WHEREOF, CITY has caused this Agreement to be executed by its duly
authorized undersigned officer and CONSULTANT has executed this Agreement on the
date hereinabove first written.
CITY OF TIGARD
By: Agustin P.D(derA,P.E., Cit Engineer
CONSULTANT
C644 ( �S Gr/VV►
By: Fishman Environment Services,LLC
\\tig333\usr'4epts\eng\2001-2002 fy dp\110th we @ deny dell creeMoontract-fishman ertvimnrnental semices.doc
Personal Services Contract—110th Ave Sanitary Sewer Realignment—Derry Dell Creek
Page 11
EXHIBIT `A'
SERVICES TO BE PROVIDED
Per the attached Proposal for Wetland/Natural Resources Services dated December 13, 2001 for
110tth Avenue Sanitary Sewer Realignment—Derry Dell Creek.
FES Proposal P0112j
Personal Services Contract—110'Ave Sanitary Sewer Realignment—Derry Dell Creek
Page 12
Fishman Environmental Services, LLC
CONSULTANTS IN ECOLOGY AND NATURAL RESOURCE MANAGEMENT
PROPOSAL FOR WETLAND /NATURAL RESOURCE SERVICES
December 13, 2001
Vannie Nguyen, CIP Engineering Manager
City of Tigard
13125 SW Hall Boulevard
Tigard, Oregon 97223
PROJECT: 110`h Avenue Sanitary Sewer Realignment- Derry Dell Creek
Wetland Delineation and Permit Coordination; FES Proposal PO112j
SCOPE OF SERVICES:
Task 1) Conduct Wetland Delineation Within the Proposed Sewer Alignment
A wetland delineation will be conducted within the proposed sewer alignment across
Derry Dell Creek. Wetland determination methodology will conform with the currently
accepted 1987 U.S. Army Corps of Engineers Wetlands Delineation Manual, used by the
Oregon Division of State Lands and the U.S. Army Corps of Engineers. Hydrology, soils,
and vegetation will be documented on wetland determination data sheets. The wetland
boundary will be staked in the field and hand-mapped on an appropriate base map.
Task 2) Analyze Vegetated Corridor to Meet CWS Requirements
The condition of the existing vegetated corridor adjacent to the wetlands on both sides of
Derry Dell Creek will be analyzed per CWS requirements. Recommendations for
enhancement of the vegetated corridors will be made if they are found to be in degraded
or marginal condition.
Task 3) Conduct a Rapid Stream Assessment on the Project Site
-- Since the proposed crossing of Derry-Dell-Creek is by trench, a RSAT-(rapid-stream
assessment technique) will be required by CWS. (Boring is not being recommended due to
impacts to residential properties.)
Task 4) Prepare Wetland Delineation Report and CWS Natural Resource Assessment Report
A report will be prepared to detail the results of Tasks 1-3. The report will include the
Sensitive Areas Certification form required by the CWS. The ODFW preferred in-water
work period will be discussed. This report will be submitted to the Division of State Lands
and the U.S. Army Corps of Engineers in conjunction with the fill permit application.
Task 5) Submit Wetland Fill Permit Application and Restoration Plan
In coordination with the City of Tigard, a wetland fill permit application will be submitted
to the regulatory agencies for the project. The permit application will include a restoration
plan for re-vegetation of the impacted corridor and replacement of removed trees.
Task 6) Agency Coordination O
FES will coordinate agency review. Trenching will involve more coordination than boring.
o
o`p �
434 NW Sixth Avenue,Suite 304 Portland OR 97209-3600 phone:503 224 0333 fax:503 224 1851 www.fishenserv.com
PROPOSAL FOR WETLAND /NATURAL RESOURCE SERVICES, page 2
110`h Avenue Sanitary Sewer Realignment - Derry Dell Creek
Wetland Delineation and Permit Coordination
FES Proposal POI 12j
COST ESTIMATE:
Task 1) Wetland Delineation $ 600
Task 2) Vegetated Corridor Analysis $ 200
Task 3) RSAT $1,400
Task 4) Report $1,500
Task 5) Permit $2,000
Task 6) Agency Coordination 600
Total Not-to-Exceed $6,300
SCHEDULE:
As needed to meet the project schedule.
TERMS:
Services will be billed on a time and materials basis through the last Saturday of the month in
accordance with our current fee schedule. Balance is due upon receipt of monthly invoices.
Consultant agrees to perform consulting services with that standard of care, skill, and diligence
normally provided by a professional in the performance of similar environmental consulting
services.Note: Owner and employees of Fishman Environmental Services, LLC are covered by
general and professional liability insurance ($1,000,000); employees are covered by Worker's
Compensation insurance; certificates of insurance will be provided upon request. This proposal is
valid for a period of 90 days.
Prepared-by:
C:AAI�v
C. Mirth Walker, PWS
Wetland Program Manager
G:\2001\proposal\p0112J_110thSanitary\proposal.wpd
02,"01,,2002 14:44 F.-kl 503 613 1797 K. I.T.DVUA OR IA002/003
CERTIFICATE OF INSURANCE
1$$LIE GATE February 1,•2002 Iml
This Certificate is issued as a matter of information only and confers no rights upon the certificate holder- This certificate does not amend,extend or
alter the coverage afforded by the policies below:
Name and Address of Agency Companies Affording Coverage
KENNETH I.TOBEY,INC. Letter A SCOTTSDALE INSURANCE COMPANY
PROPERTY&CASUALTY DIVISION
P.O.Box 130 Letter B
Beaverton,OR 97075
Name and Address of Insured "THIS EVIDENCE OF INSURANCE PRODUCED AND DEVELOPED
UNDER THE OREGON SURPLUS LINE LAWS. IT IS NOT COVERED
FISHMAN ENVIRONMENTAL SERVICES INC. BY THE PROVISIONS OF ORS 734.510 TO 734.710 RELATING TO
434 NW 6th AVENUE #304 THE OREGON INSURANCE GUARANTY ASSOCIATION. 1F THE
PORTLAND,OREGON 97209 INSURER ISSUING THIS INSURANCE BECOMES INSOLVENT,THE
OREGON INSURANCE GUARANTY ASSOCIATION HAS NO
OBLIGATION TO PAY CLAIMS UNDER THIS EVIDENCE OF
INSURANCE"
This is to certify that policies of Insurance listed below have been issued to the insured named above for the policy period Indicated, notwithstanding
any requirement,term or condition of any contract of other document with respect to which this certificate may be issued or may pertain,the insurance
afforded by the policies described herein is subject to all the terms,exclusions,and conditions of such policies. The limits shown may have been
reduced by paid cla; s.
Co Type of Policy Number Policy Policy Limits of Liability
Ltr Insurance Effective Expiration
--GENERAL LIABILITY
A X Commercial General Liability CLS 077 70 25 07/18/2001 07/1812002 General Aggregate $2,000,000.00
Claims Made X Occurrence-. Prod ucts-Com plOps Aggregate $1,000,000.00
Owner's S Contractors Protective Personal&Advertising Injury. $1,000,000.00
Each Occurrence $1,000,000,00
Fire Damage(Any one fire) S 100,000.00
Medical Expense(Any one $ 5,000.00
person)
-----AUTOMOBILE LIABILITY— ----•---.........
........ .•-�, ---
Any Auto Combined Single Limit $
All Owned Autos Bodily Injury(Per person) $
Scheduled Autos Bodily Injury(Per accident) $
Hired Autos Property Damage $
Non-Owned Autos
Garage Uibiiity
---EXCESS LIABILITY--------- �.------------•.-..._.-....
Umbrella Form Each Occurrence $
Other than Umbrella Form Aggregate $
WORKER'S COMPENSATION---------•-•--•---•------ --
- -Worker's Compensation STATUTORY LIMITS
And Each Accident $
Employers'Liabillty Disease Policy Limit $
Disease-Each Employee $
--OTHER- ----- -- ------- . ..................-..-._-.... ..-
A X NON-OWNED AUTOS CLS 077 70 25 07/18/2001 07/18/2002 Limit $1,000,000.00
Description or Operations!LocationsNehicies/Restrictions/Special Items
OPERATIONS OF THE NAMED INSURED,SUBJECT TO ALL POLICY TERMS,CONDITIONS AND EXCLUSIONS.
"City of Tigard,Oregon,its officers,directors and employees" Is Named Additional Insured per Blanket Additional Insured.
It is further agreed that this insurance shall be primary and non-contributory per Form CG 2010.
RE: File No. 0443-Bike Path Stabilization
Fite No. 0434-110`"Ave Sanitary Sewer Relignment
Reference# M99-39 Fanno Creek Trails-Wetland Monitoring
CANCELLATION: Should any of the above described policies be canceled before the expiration date thereof, the issuing
company wil!endeavor to mail (30) days written notice to the certificate holder named below, but failure
to mail such notice shall impose no obligation or liability of any kind upon the company,its agents or representatives.
Certificate Holder /ADDITIONAL INSURED
Primary & Noncontributory
The City of Tigard,Oregon, its officers,directors and employees
13125 SW Hall Blvd
Tigard,OR 97223
Attn: Uiane Jelderks Authorized Representative
C�ii TfOri_•i
02,'01,,20(12 14:44 FAX 503643 1? K. I.T.I)VU?l OR 1003/1003
POLICY NUMBER. cLS0777025 COMMERCIAL GENERAL LIABILITY
CG 20 10 03 97
THIS ENDORSEMENT-CHANGES THE POLICY. PLEASE READ IT CAREFULLY.
_ADDITIONAL INSURED- OWNERS, LESSEES OR
CONTRACTORS - SCHEDULED PERSON OR
ORGANIZATION
This endorsement modities insurance provided under the following:
COMMERCIAL GENERAL LIABILITY COVERAGE PART
SCHEDULE
Name of Person or Organization:
The City of Tigard, Oregon, its officers, directors, and employees
13125 sw Hall Blvd.
Tigard, OR 9722.3
It is further agreed this Insurance shall be primary and noncontributory, but only
(If no entry appears above, information required to complete this endorsement will be shown In the Declarations as
applicable to this endorsement,)
Who Is An Insured (Section II) is amended to include as an insured the person or organization shown in the
Schedule, but only with respect to liability arising out of your ongoing operations performed for that insured.
CG 20 10 03 97 Copyright, Insurance Services Office, Inc., 1 c-96 Page 1 of 1
MEMORANDUM