Loading...
WH Pacific ~ C110009 CITY OF TIGARD, OREGON AMENDMENT TO CONTRACT BURNHAM STREET OWNER'S REPRESENTATIVE AGREEMENT AMENDMENT #1 The Agreement between the City of Tigard, a municipal corporation of the State of Oregon, hereinafter called City, and WH Pacific Inc , hereinafter referred to as Contractor, entered into on the 28t day of October 27, 2009, is hereby amended as follows 3 Engineer's Fee A Basic Fee 1) As compensation for Basic Services as described m Exhibit 1 of this Agreement and for services required in the fulfillment of Paragraph 1 the Engineer shall be paid on an hourly rate based upon the "Schedule of Rates" m Exhibit 1 of this agreement, which shall constitute full and complete payment for said services and all expenditures which may be made and expenses incurred, except as otherwise expressly provided in this Agreement The Basic Fee shall not exceed the amount of Four Hundred Ninety Nine Thousand Seven Hundred Sixty and 68/100 dollars ($499,760 68) Five Hundred Twenty One Thousand Five Hundred Eight and 05/100 dollars ($521,508 05) without prior wntten authorization IN WITNESS WHEREOF City has caused this Amendment to be executed by its duly authorized undersigned officer and Contractor has executed this Amendment upon signature and date hsted below CITY OF TIG • • WH PACIFIC, INC Signature Signature k i LA M _ -Adi I Lf_A U)a 114 e u Pp-- Printed Name Printed N'ame I 5/30// Date Date City of Tigard 13125 SW Hall Blvd ° CONTRACT CHANGE ORDER/ Tigard Oregon 97223 111 P hone (503) 639 -4171 T t G ARD AMENDMENT SUMMARY FORM Fax - (503) 684 -7297 www tigard or gov Project Title Burnham Street Owner s Representative Project Manager Kim McMillan Contractor WH Pacific Original Contract # C110009 Effective Dates July 1 2011 Contract /Amend Total Amount $ 521,508 05 Accounting String 2106300753473 Amendment Percentage Running Total AMENDMENT DETAILS Increase contract amount $21 747 37 CHANGE ORDER DETAILS UNIT QTY UNIT $ TOTAL $ NA REASONING FOR CHANGE ORDER /AMENDMENT The continuing work to wrap up the project has resulted m a need to increase the amount of the contract REQUESTING PROJECT MANAGER APPROVING CITY STAFF Kim McMilhan Signature 1 Si ature 9/1/11 Ci/l Date Date Contractor is hereby authorized by the City of Tigard to perform CONTRACTOR the additional work descnbed below m accordance with the terms and conditions detailed in the ongmal contract along with all apphcable rules regulations and laws that may be m effect for Signature the work The unit pricing in the original contract shall apply to all additional work A cop} of this form once completed is to be forwarded to the Purchasing Office to ensure all changes to the encumbrances are met Remember — the cumulative total of Amendments cannot exceed 25% of the original contract Date 14111Patifc June 28 2011 Kiln McMillan Development Rc v iov J\1I nlagu ity o1 l igaid Comrnunuy Dcv clopment 1312) ''3\Ai Hall BINd Tigaid, OR 97223 Ro Ccei oa ft aP^a EB3 Woe ra be wce— ktNifIC da 1 Con t / /rd"tc;ndadenl. Rce Deat Vim This p1oieL,t is drawing to a very suucesolul L lose I1 has been 1 cell p1e sure to assist the City in it completion 1I1`14e been lelit—wing the Cost and budget situation on this pioject ind shaung tint lvith 3 ou These estimates piojet ted that the cost Would be vela L lose to t1 e nvlximum budget amount The recent \Volk u1 completion of the paving and as built plans ovet the past month has changed that pioJectlon 1 am requesting an incieasc of the budget lot `,11 7 31 as included in the 'addled amendment outline and spreadsheet that -ire attached 1his has t'ken into account the rtcdit due the city foi the collection needed to adjust foi the lnconect sui\ c,3 \yolk `That will included in our nevi invoice to acknowledge that cicdtt the existing conti it budget is $499 760 68 This mcicase would icsult in 1 new contract amount of $521 508 05 Ph asc 'mew view this and call me at (503) 312 3520 if you h we any questions Sinccicly Wlif PAC & Wayne Bauer PE Ptolect IVIinagei 9755 SW Barnes Road Swte 300 Porthnd OR 97225 J01 676 04J5 503 .26 0775 www whpaciftc com '', June 28 2011 Elm IVlc,Ivlillan Det clopmeitt Pe vices i\fanaget C it of 1 igard Community DUN eloprtient 13125 SW Ball Blvd Tigaid, OR 97223 d,c 42;to. Bqa bcilfire,,, b f_licurceefii 1'it- 1 (JOei,ti(.1( f'f�lent laic ilt ��r PPP t Deal. Kim This project is thawing to a el) successful close I1 has been a seal pleasuie to assist the City in it completion I have been ieviewing the cost and budget situation on this p1oJect and sharing that with you These estimates pioi't ted that the cost would be very ( lose to the maximum budget amount The recent woik in completion of the paving and as built plans ov(i flit past month has changed that lu oJection 1 tun requesting an int-tease of the budget ioi `)21 7 3/ a tnt lulled in (Ice attached amendment outline and spreadsheet that are attached I Ins has t if\en into at.count the cicdit due the city for the coiiection needed to adjust loi the iuconect sun ey That will included in our ne "t invoice to acknowledge that eiedtt the existing contract budget is $499 760 68 T his increase would 1 Lsult rn i new t ontiact amount of $521 508 OS Pleas. ieview this and call me at (503) 372 -3520 if you have any questions Sinc,cicly IT PACIFIC, INC Wayne 13auet PE Ptolect Manager 975.E SW Barnes Road Suite 300 Porthnd OR 97225 Al 626 04» J03 526 0775 wwv v hpaefic com Contract # C l iCooC/ El! CITY OF TIGARD, OREGON ENGINEERING SERVICES AGREEMENT BURNHAM STREET OWNER'S REPRESENTATIVE jAR THIS AGREEMENT, made and entered into this 12th day of November, 2009, by and between the City of Tigard, a municipal corporation, hereinafter referred to as the " City," and WHPacific, whose authorized representative is Wayne Bauer, and having a principal being a registered engineer of the State of Oregon, hereinafter referred to as the " Engineer. " RECITALS WHEREAS, the City's Fiscal Year 2009-2010 budget provides for the design and construction of improvements to SW Burnham Street; and WHEREAS, the accomplishment of the work and services described in this Agreement is necessary and essential to the public works improvement program of the City; and WHEREAS, the City desires to engage the Engineer to render professional engineering services for the project described in this Agreement, and the Engineer is willing and qualified to perform such services; THEREFORE, in consideration of the promises and covenants contained herein, the parties hereby agree as follows : 1 . Engineer' s Scope of Services The Engineer shall perform professional engineering services relevant to the Project in accordance with the terms and conditions set forth herein, and as provided in Exhibit 1 , which is attached hereto and by this reference made a part of this Agreement. 2. Effective Date and Duration This agreement shall become effective upon the date of execution by the City's Local Contract Review Board, and shall expire, unless otherwise terminated or extended, on completion of the work or December 31 , 2011 , whichever comes first. All work under this Agreement shall be completed prior to the expiration of this Agreement. 3. Engineer' s Fee A. Basic Fee 1) As compensation for Basic Services as described in Exhibit 1 of this Agreement, and for services required in the fulfillment of Paragraph 1 , the Engineer shall be paid on an hourly rate based upon the " Schedule of Rates " in Exhibit 1 of this agreement, which shall constitute full and complete payment for said services and all expenditures which may be made and expenses incurred, except as otherwise expressly provided in this Agreement. The Basic Fee shall not exceed the amount of Four Hundred Ninety Nine Thousand Seven Hundred Sixty and 68 / 100 Dollars ($499,760. 68) without prior written authorization. 2) The parties hereto do expressly agree that the Basic Fee is based upon the Scope of Services to be provided by the Engineer and is not necessarily related to the estimated construction cost of the Project. In the event that the actual construction cost differs from the estimated construction cost, the Engineer's compensation will not be adjusted unless the Scope of Services to be provided by the Engineer changes and is authorized and accepted by the City. B. Payment Schedule for Basic Fee Payments shall be made upon receipt of billings based on the work completed. Billings shall be submitted by the Engineer periodically, but not more frequently than monthly. Payment by the City shall release the City from any further obligation for payment to the engineer for service or services performed or expenses incurred as of the date of the statement of services . Payment shall be made only for work actually completed as of the date of invoice. Payment shall not be considered acceptance or approval of any work or waiver of any defects therein. 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 1 of this contract for minor project additions and/or alterations . D. Certified Cost Records The Engineer shall furnish certified cost records for all billings pertaining to other than lump sum fees to substantiate all charges . For such purposes, the books of account of the Engineer shall be subject to audit by the City. The Engineer shall complete work and cost records for all billings on such forms and in such manner as will be satisfactory to the City. E. Contract Identification The Engineer shall furnish to the City its employer identification number, as designated by the Internal Revenue Service, or social security number, as the City deems applicable. F. Payment — General 1) Engineer shall pay to the Department of Revenue all sums withheld from employees pursuant to ORS 316 . 167. 2) Engineer shall pay employees at least time and a half pay for all overtime worked in excess of 40 hours in any one week except for individuals under the contract who are excluded under ORS 653 . 010 to 653 .261 or under 29 USC sections 201 to 209 from receiving overtime. 3) Engineer shall promptly, as due, make payment to any person, co- partnership, association or corporation, furnishing medical, surgical and hospital care or other needed care and attention incident to sickness or injury to the employees of Engineer or all sums which Engineer agrees to pay for Page 2 such services and all moneys and sums which Engineer collected or deducted from the wages of employees pursuant to any law, contract or agreement for the purpose of providing or paying for such service. 4) The City certifies that sufficient funds are available and authorized for expenditure to finance costs of this contract. 5) Engineer shall make payments promptly, as due, to all persons supplying services or materials for work covered under this contract. Engineer shall not permit any lien or claim to be filed or prosecuted against the City on any account of any service or materials furnished. 6) If Engineer fails, neglects or refuses to make prompt payment of any claim for labor, materials, or services furnished to Engineer, sub-consultant or subcontractor by any person as such claim becomes due, City may pay such claim and charge the amount of the payment against funds due or to become due to the Engineer. The payment of the claim in this manner shall not relieve Engineer or their surety from obligation with respect to any unpaid claims . 4. Ownership of Plans and Documents : Records A. The field notes, design notes, and original drawings of the construction plans, as instruments of service, are and shall remain, the property of the Engineer; however, the City shall be furnished, at no additional cost, one set of previously approved reproducible drawings, on 3 mil minimum thickness mylar as well as diskette in "DWG" or "DXF" format, of the original drawings of the work. The City shall have unlimited authority to use the materials received from the Engineer in any way the City deems necessary. B. The City shall make copies, for the use of and without cost to the Engineer, of all of its maps, records, laboratory tests, or other data pertinent to the work to be performed by the Engineer pursuant to this Agreement, and also make available any other maps, records, or other materials available to the City from any other public agency or body. C. The Engineer shall furnish to the City, copies of all maps, records, field notes, and soil tests which were developed in the course of work for the City and for which compensation has been received by the Engineer at no additional expense to the City except as provided elsewhere in this Agreement. 5. Assignment/Delegation Neither party shall assign, sublet or transfer any interest in or duty under this Agreement without the written consent of the other and no assignment shall be of any force or effect whatsoever unless and until the other party has so consented. If City agrees to assignment of tasks to a subcontract, Engineer shall be fully responsible for the acts or omissions of any subcontractors and of all persons employed by them, and neither the approval by City of any Page 3 subcontractor nor anything contained herein shall be deemed to create any contractual relation between the subcontractor and City. 6. Engineer is Independent Contractor A. The City's project director, or designee, shall be responsible for determining whether Engineer's work product is satisfactory and consistent with this agreement, but Engineer is not subject to the direction and control of the City. Engineer shall be an independent contractor for all purposes and shall be entitled to no compensation other than the compensation provided for under Section 3 of this Agreement. B. Engineer is an independent contractor and not an employee of City. Engineer acknowledges Engineer's status as an independent contractor and acknowledges that Engineer is not an employee of the City for purposes of workers compensation law, public employee benefits law, or any other law. All persons retained by Engineer to provide services under this contract are employees of Engineer and not of City. Engineer acknowledges that it is not entitled to benefits of any kind to which a City employee is entitled and that it shall be solely responsible for workers compensation coverage for its employees and all other payments and taxes required by law. Furthermore, in the event that Engineer is found by a court of law or an administrative agency to be an employee of the City for any purpose, City shall be entitled to offset compensation due, or to demand repayment of any amounts paid to Engineer under the terms of the agreement, to the full extent of any benefits or other remuneration Engineer receives (from City or third party) as a result of said finding and to the full extent of any payments that City is required to make (to Engineer or to a third party) as a result of said finding. C. The undersigned Engineer hereby represents that no employee of the City or any partnership or corporation in which a City employee has an interest, has or will receive any remuneration of any description from the Engineer, either directly or indirectly, in connection with the letting or performance of this Agreement, except as specifically declared in writing. D. If this payment is to be charged against Federal funds, Engineer certifies that he/she is not currently employed by the Federal Government and the amount charged does not exceed his/her normal charge for the type of service provided. E. Engineer and its employees, if any, are not active members of the Oregon Public Employees Retirement System and are not employed for a total of 600 hours or more in the calendar year by any public employer participating in the Retirement System. F. Engineer certifies that it currently has a City business tax receipt or will obtain one prior to delivering services under this Agreement. G. Engineer is not an officer, employee, or agent of the City as those terms are used in ORS 30.265 . Page 4 7. Indemnity A. The City has relied upon the professional ability and training of the Engineer as a material inducement to enter into this Agreement. Engineer represents to the City that the work under this contract will be performed in accordance with the professional standards of skill and care ordinarily exercised by members of the engineering profession under similar conditions and circumstances as well as the requirements of applicable federal, state and local laws, it being understood that acceptance of an Engineer's work by the City shall not operate as a waiver or release. Acceptance of documents by City does not relieve Engineer of any responsibility for design deficiencies, errors or omissions. B. Claims for other than Professional Liability. Engineer shall defend, save and hold harmless the City of Tigard, its officers, agents, and employees from all claims, suits, or actions and all expenses incidental to the investigation and defense thereof, of whatsoever nature, including intentional acts resulting from or arising out of the activities of Engineer or its subcontractors, sub-consultants, agents or employees under this contract. If any aspect of this indemnity shall be found to be illegal or invalid for any reason whatsoever, such illegality or invalidity shall not affect the validity of the remainder of this indemnification. C. Claims for Professional Liability. Engineer shall defend, save and hold harmless the City of Tigard, its officers, agents, and employees from all claims, suits, or actions and all expenses incidental to the investigation and defense thereof, arising out of the professional negligent acts, errors or omissions of Engineer or its subcontractors, sub-consultants, agents or employees in performance of professional services under this agreement. Any design work by Engineer that results in a design of a facility that is not readily accessible to and usable by individuals with disabilities shall be considered a professionally negligent act, error or omission. D. As used in subsections B and C of this section, a claim for professional responsibility is a claim made against the City in which the City' s alleged liability results directly or indirectly, in whole or in part, from the quality of the professional services provided by Engineer, regardless of the type of claim made against the City. A claim for other than professional responsibility is a claim made against the City in which the City's alleged liability results from an act or omission by Engineer unrelated to the quality of professional services provided by Engineer. 8. Insurance Engineer and its subcontractors shall maintain insurance acceptable to City in full force and effect throughout the term of this contract. Such insurance shall cover all risks arising directly or indirectly out of 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. Page 5 The policy or policies of insurance maintained by the Engineer and its subcontractors shall provide at least the following limits and coverages: A. Commercial General Liability Insurance Engineer shall obtain, at Engineer's expense, and keep in effect during the term of this contract, Comprehensive General Liability Insurance covering Bodily Injury and Property Damage on an "occurrence" form (1996 ISO or equivalent) . This coverage shall include Contractual Liability insurance for the indemnity provided under this contract. The following insurance will be carried: Coverage Limit General Aggregate $2,000,000 Products-Completed Operations Aggregate 1 ,000,000 Personal & Advertising Injury 1 ,000,000 Each Occurrence 1 ,000,000 Fire Damage (Any one fire) 50,000 Medical Expense (Any one person) 5,000 B. Professional Liability Engineer shall obtain, at Engineer's expense, and keep in effect during the term of this contract, Professional Liability Insurance covering any damages caused by an error, omission or any negligent acts . Combined single limit per occurrence shall not be less than $ 1 ,000,000, or the equivalent. Annual aggregate limit shall not be less than $2,000,000 and filed on a "claims-made" form. C. Commercial Automobile Insurance Engineer shall also obtain, at architect's expense, and keep in effect during the term of the contract (Symbol 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 $ 1 ,000,000. D. Workers' Compensation Insurance The Engineer, its subcontractors, if any, and all employers providing work, labor or materials under this Contract are subject employers under the Oregon Workers' Compensation Law and shall comply with ORS 656 . 017, which requires them to provide workers' compensation coverage that satisfies Oregon law for all their subject workers . Out-of-state employers must provide Oregon workers' compensation coverage for their workers who work at a single location within Oregon for more than 30 days in a calendar year. Engineers who perform work without the assistance or labor of any employee need not obtain such coverage. This shall include Employer's Liability Insurance with coverage limits of not less than $ 100,000 each accident. E. Additional Insured Provision The Commercial General Liability Insurance Policy and other policies the City deems necessary shall include the City its officers, directors, and employees as Page 6 additional insureds with respect to this contract. Coverage will be endorsed to provide a. per project aggregate. F. Extended Reporting Coverage If any of the aforementioned liability insurance is arranged on a "claims made" basis, Extended Reporting coverage will be required at the completion of this contract to a duration of 24 months or the maximum time period the Engineer's insurer will provide such if less than 24 months . Engineer will be responsible for furnishing certification of Extended Reporting coverage as described or continuous "claims made" liability coverage for 24 months following contract completion. Continuous "claims made" coverage will be acceptable in lieu of Extended Reporting coverage, provided its retroactive date is on or before the effective date of this contract. Coverage will be endorsed to provide a per project aggregate. G. Notice of Cancellation There shall be no cancellation, material change, exhaustion of aggregate limits or intent not to renew insurance coverage without 30 days written notice to the City. Any failure to comply with this provision will not affect the insurance coverage provided to the City. The 30 days notice of cancellation provision shall be physically endorsed on to the policy. H. Insurance Carrier Rating Coverage provided by the Engineer must be underwritten by an insurance company deemed acceptable by the City. The City reserves the right to reject all or any insurance carrier(s) with an unacceptable financial rating. Certificates of Insurance As evidence of the insurance coverage required by the contract, the Engineer shall furnish a Certificate of Insurance to the City. No contract shall be effected until the required certificates have been received and approved by the City. The certificate will specify and document all provisions within this contract. A renewal certificate will be sent to the address below ten days prior to coverage expiration. J. Primary Coverage Clarification The parties agree that Engineer's coverage shall be primary to the extent permitted by law. The parties further agree that other insurance maintained by the City is excess and not contributory insurance with the insurance required in this section. K. Cross-Liability Clause A cross-liability clause or separation of insureds clause will be included in all general liability, professional liability, pollution, and errors and omissions policies required by this contract. Engineer's insurance policy shall contain provisions that such policies shall not be canceled or their limits of liability reduced without 30 days prior notice to City. A copy of each insurance policy, certified as a true copy by an authorized representative of the issuing Page 7 insurance company, or at the discretion of City, in lieu thereof, a certificate in form satisfactory to City certifying to the issuance of such insurance shall be forwarded to : City of Tigard Attn: Joe Barrett, Sr. Management Analyst 13125 SW Hall Blvd Tigard, Oregon 97223 Such policies or certificates must be delivered prior to commencement of the work. Thirty days cancellation notice shall be provided City by certified mail to the name at the address listed above in event of cancellation or non-renewal of the insurance. The procuring of such required insurance shall not be construed to limit Engineer's liability hereunder. Notwithstanding said insurance, Engineer shall be obligated for the total amount of any damage, injury, or loss caused by negligence or neglect connected with this contract. 9. Termination Without Cause At any time and without cause, City shall have the right in its sole discretion, to terminate this Agreement by giving notice to Engineer. If City terminates the contract pursuant to this paragraph, it shall pay Engineer for services rendered to the date of termination. 10. Termination With Cause A. City may terminate this Agreement effective upon delivery of written notice to Engineer, or at such later date as may be established by City, under any of the following conditions : 1) If City funding from federal, state, local, or other sources is not obtained and continued at levels sufficient to allow for the purchase of the indicated quantity of services . This Agreement may be modified to accommodate a reduction in funds. 2) If Federal or State regulations or guidelines are modified, changed, or interpreted in such a way that the services are no longer allowable or appropriate for purchase under this Agreement. 3) If any license or certificate required by law or regulation to be held by Engineer, its subcontractors, agents, and employees to provide the services required by this Agreement is for any reason denied, revoked, or not renewed. 4) If Engineer becomes insolvent, if voluntary or involuntary petition in bankruptcy is filed by or against Engineer, if a receiver or trustee is appointed for Engineer, or if there is an assignment for the benefit of creditors of Engineer. Page 8 Any such termination of this agreement under paragraph (A) shall be without prejudice to any obligations or liabilities of either party already accrued prior to such termination. B. City, by written notice of default (including breach of contract) to Engineer, may terminate the whole or any part of this Agreement: 1) If Engineer fails to provide services called for by this agreement within the time specified herein or any extension thereof, or 2) If Engineer fails to perform any of the other provisions of this Agreement, or so fails to pursue the work as to endanger performance of this agreement in accordance with its terms, and after receipt of written notice from City, fails to correct such failures within ten days or such other period as City may authorize. 3) If Engineer fails to eliminate a conflict as described in Section 14 of this agreement. 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: Page 9 CITY OF TIGARD WHPACIFIC Attn: Kim McMillan, Const. Svcs. Engineering Mgr. Attn: Wayne Bauer, Project Manager Address: 13125 SW Hall Blvd. Address: 9775 SW Barnes Road, Suite 300 Tigard, Oregon 97223 Portland, Oregon 97225 Phone: (503) 718-2642 Phone: (503) 626-0455 Fax: (503) 624-0752 Fax: (503) 526-0775 Email Address: kim @tigard-or.gov Email Address: wbauer @whpacific.com and when so addressed, shall be deemed given upon deposit in the United States mail, postage prepaid, or when so faxed, shall be deemed given upon successful fax. In all other instances, notices, bills and payments shall be deemed given at the time of actual delivery. Changes may be made in the names and addresses of the person to whom notices, bills and payments are to be given by giving written notice pursuant to this paragraph. 13. Merger This writing is intended both as a final expression of the Agreement between the parties with respect to the included terms and as a complete and exclusive statement of the terms of the Agreement. No modification of this Agreement shall be effective unless and until it is made in writing and signed by both parties. 14. Professional Services The City requires that services provided pursuant to this agreement shall be provided to the City by an Engineer, which does not represent clients on matters contrary to City interests. Further, Engineer shall not engage services of an engineer and/or other professional who individually, or through members of his/her same firm, represents clients on matters contrary to City interests . Should the Engineer represent clients on matters contrary to City interests or engage the services of an engineer and/or other professional who individually, or through members of his /her same firm, represents clients on matters contrary to City interests, Engineer shall consult with the appropriate City representative regarding the conflict. After such consultation, the Engineer shall have five (5) days to eliminate the conflict to the satisfaction of the City. If such conflict is not eliminated within the specified time period, the agreement may be terminated pursuant to Section 10 (B - 3) of this agreement. 15. Force Majeure Neither City nor Engineer shall be considered in default because of any delays in completion and responsibilities hereunder due to causes beyond the control and without fault or negligence on the part of the parties so disenabled, including but not restricted to, an act of God or of a public enemy, civil unrest, volcano, earthquake, fire, flood, epidemic, quarantine restriction, area-wide strike, freight embargo, unusually severe weather or delay of subcontractor or supplies due to such cause; provided that the parties so disenabled shall within ten days from the beginning of such delay, notify the other party in writing of the cause of delay and its probable extent. Such notification shall not be the basis for a claim for additional compensation. Each party shall, however, make 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. Page 10 16. Non-Discrimination Engineer agrees to comply with all applicable requirements of federal and state civil rights and rehabilitation statues, rules, and regulations. Engineer also shall comply with the Americans with Disabilities Act of 1990, ORS 659.425, and all regulations and administrative rules established pursuant to those laws. 17. Errors Engineer shall perform such additional work as may be necessary to correct errors in the work required under this Agreement without undue delays and without additional cost. 18. Extra (Changes) Work Only the City's designated Project Manager, Kim McMillan, may authorize extra (and/or change) work. Failure of Engineer to secure authorization for extra work shall constitute a waiver of all right to adjustment in the contract price or contract time due to such unauthorized extra work and Engineer thereafter shall be entitled to no compensation whatsoever for the performance of such work. 19. Governing Law The provisions of this Agreement shall be construed in accordance with the provisions of the laws of the State of Oregon. Any action or suits involving any question arising under this Agreement must be brought in the appropriate court of the State of Oregon. 20. Compliance With Applicable Law Engineer shall comply with all federal, state, and local laws and ordinances applicable to the work under this Agreement, including those set forth in ORS 279C. 21 . Conflict Between Terms It is further expressly agreed by and between the parties hereto that should there be any conflict between the terms of this instrument in the proposal of the contract, this instrument shall control and nothing herein shall be considered as an acceptance of the said terms of said proposal conflicting herewith. 22. Access to Records City shall have access to such books, documents, papers and records of Engineer as are directly pertinent to this Agreement for the purpose of making audit, examination, excerpts and transcripts . 23. Audit Engineer shall maintain records to assure conformance with the terms and conditions of this Agreement, and to assure adequate performance and accurate expenditures within the contract period. Engineer agrees to permit City, the State of Oregon, the federal government, or their duly authorized representatives to audit all records pertaining to this Agreement to assure the accurate expenditure of funds. Page 11 24. Severability In the event any provision or portion of this Agreement is held to be unenforceable or invalid by any court of competent jurisdiction, the validity of the remaining terms and provisions shall not be affected to the extent that it did not materially affect the intent of the parties when they entered into the agreement. 25. Industrial Accident Fund Payment Contractor shall pay all contributions or amount due the Industrial Accident Fund form that Contractor or subcontractors incur during the performance of this Agreement. 26. Complete Agreement This Agreement and attached exhibit(s) constitutes the entire Agreement between the parties. No waiver, consent, modification, or change of terms of this Agreement shall bind either party unless in writing and signed by both parties . Such waiver, consent, modification, or change if made, shall be effective only in specific instances and for the specific purpose given. There are no understandings, agreements, or representations, oral or written, not specified herein regarding this Agreement. Engineer, by the signature of its authorized representative, hereby acknowledges that he/she has read this Agreement, understands it and agrees to be bound by its terms and conditions . IN WITNESS WHEREOF, City has caused this Agreement to be executed by its duly authorized undersigned officer and Architect has executed this Agreement on the date hereinabove first written. Approved by the Tigard Local Contract Review Board: October 27, 2009 . CITY • F IG W PACIFIC 1 By: Au / orized City Representative By. uthorized C retractor Representative 1 G /a tk k 11409\ Date Date Page 12 EXHIBIT 1 DUTY OF ENGINEER Construction Project Overview The construction project associated with this Agreement includes the reconstruction of SW Burnham Street from SW Hall Boulevard to SW Main Street in downtown Tigard. SW Ash Street will also be improved to the south of SW Burnham Street and newly constructed from SW Burnham Street to the Commuter Rail Park & Ride Lot. The street improvement project provides for two travel lanes, parking and sidewalks on both sides of SW Burnham Street along the entire length of the project. Water quality, drainage improvements, landscaping, streetscaping, sanitary sewer improvements, waterline improvements, undergrounding of utilities, and street lighting improvements also constitute work encompassed under the project. General Service Overview The City recognizes the need for additional expertise to assist staff in managing this project largely due to its sheer size. Contractor shall serve as the City's onsite representative during the project's -work providing construction review, construction survey and layout, inspection services, testing services, and other services as needed. Specific Service Details The Contractor shall provide the City with the personnel, materials, and resources required to perform the following services related to the SW Burnham Street project: 1. Construction project management, contract administration, and contract documentation for the project construction; 2. Conduct any pre-construction meetings with the project's Prime Contractor and City; 3. Provide certified inspectors per the construction project's specifications; 4. Coordination of submittal reviews and responses from the Engineer of Record; 5 . Construction of construction related questions and obtain responses from the Engineer of Record; 6. Review and approve, when appropriate, all Construction Shop Drawings; 7 . Perform construction monitoring and inspection services for the SW Burnham Street project; 8 . Perform field measurements and calculations and prepare documentation for monthly construction progress estimates; 9. Perform environmental and permit coordination and compliance monitoring during the construction phase of the SW Burnham Street project; 10. Complete and submit as-constructed plans; 11. Schedule, prepare agendas for, attend, participate in, facilitate, and prepare minutes of Project process meetings; 12. Review and recommend needed design changes; 13. Develop and submit the Project Manager's narrative reports on construction; 14. Review documentation with the City at regular intervals throughout the Project; 15 . Prepare and submit the final Project documentation as outlined in the Project's Construction Manual; 16. Provide detailed monthly updates on the Prime Contractor's progress during the Project; and 17 . Provide additional services to the City as needed during the SW Burnham Street Project. Page 13 EXHIBIT 2 CONTRACTOR' S PROPOSAL In the event of a conflict between the Contractor's Proposal, hereby incorporated into the Agreement by this reference, and the Agreement terms and conditions or Exhibit 1 , the order of precedence shall be as follows : Agreement terms and conditions, Exhibit 1 , then Exhibit 2. Page 14