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Res 1204 - Agmt G Merseth WWTP COUNCIL BILL NO. 1502 RESOLUTION NO. 1204 A RESOLUTION ENTERING INTO AN AGREEMENT WITH GORDON L. MERSETH, PE, FOR PREPARATION OF A WASTEWATER FACILITIES PLAN AND AUTHORIZING THE MAYOR TO SIGN SAID AGREEMENT. WHEREAS. the City is engaged in the preparation of a Wastewater Facilities Plan being developed under the guidelines of the Oregon Department of Environmental Quality, and WHEREAS, in the course of initiating this work, the City has obtained the cooperation of nearby communities, including the Commissioners of Marion and Clackamas county in support of this study, and WHEREAS, in order to complete the Wastewater Facilities Plan, a consultant is necessary to perform the needed work and provide findings and recommendations to the City, and WHEREAS, Gordon L. Merseth, PE, has been identified as a consultant capable of providing the services necessary to the City, NOW, THEREFORE, THE CITY OF WOODBURN RESOLVES AS FOLLOWS: Section 1. That the City enter into an agreement with Gordon L. Merseth, PE, to provide professional services as a consultant in the preparation of a Wastewater Facilities Plan and that the Mayor is authorized to sign, on behalf of the City, said agreement. Section 2. That a copy of the agreement is attached to this resolution and, by this reference, incorporated herein.^ /J ~ Approved as to for~l.~ ~ } //16 h'S City Attorney ,Date APPROVED: L:~~..IJf:~ Page 1 - COUNCIL BILL NO. 1502 RESOLUTION NO. 1204 M _"_'_.'^'....'..'_____"'""'_'___ Passed by the Council Submitted to the Mayor Approved by the Mayor Filed in the Office of the Recorder ATTEST: l>i~~n -.J-- Mary ennant, City Recorder City of Woodburn, Oregon Page 2 - COUNCIL BILL NO. 1502 RESOLUTION NO. 1204 ""r"" -----_.---- ---r---- ..<".....---^"....~, November 22, 1993 November 23, 1993 November 23, 1993 November 23, 1993 - AN AGREEMENT TO PROVIDE PROFESSIONAL SERVICES This Agreement for services (Agreement) is formed between the City of Woodburn, oregon, ("City") and Gordon L. Merseth, PE ("Consultant") . The city is engaged in preparation of a Wastewater Facilities Plan being developed under the guidelines of the Oregon Department of Environmental Quality and is interested in developing information relating to the provision of municipal services to surrounding communities and septic tank users. In the course of initiating this work the city has obtained the cooperation of nearby communities and the commissioners of Marion and Clackamas County in support of this study. To further this work, a Consultant has been identified to perform work needed to investigate these issues and provide findings and recommendations to the City. As a result of this, the two parties hereby agree as follows: AGREEMENT: 1. SCOPE OF CONSULTANT SERVICES: The Consultant shall provide services specifically to the City of Woodburn with those services as set out in Attachment A according to the schedule found in Attachment B. .~, 2. SCOPE OF CITY SERVICES To assist the Consultant in carrying out its obligations hereunder, the city shall perform the services set out below: (a) Give thorough consideration to all reports, technical memoranda, estimates, proposals, and other documents presented by the Consultant and shall inform the Consultant of all decisions pertaining to these documents in writing. (b) The City shall schedule and moderate all project meetings. (c) The city shall monitor progress of work and advise the Consultant if additional effort is necessary to meet time constraints pertaining to the Facilities Plan work. ......... ""_"'~"'~'~'_'~___'~__M"___'_'_____""_""_'~_~_.........-,..- ~ The City shall perform these services in accordance with the schedule set out in Attachment B. 3. COMPENSATION The City shall pay the Consultant for work performed under this Agreement. The payment shall be full compensation for work performed, for services rendered and for all labor, material, supplies, equipment, and incidentals necessary to perform the work. Total compensation under this agreement shall not exceed thirty four thousand, four hundred forty five dollars ($ 34,445) without written authorization or approval to extend the total contract compensation. 4. BILLING AND PAYMENT PROCEDURE The Consultant's billing and city's payment procedures shall be as set out below: On or before the 25th day of the month, the Consultant may submit an invoice to the City for work performed by the Consultant during the preceding month. The invoice shall be based on total number of hours spent by the Consultant on the project, invoices from subconsultants documenting the hours and expenses incurred by those subconsultants and direct expenses at cost. Payment to the Consultant is due upon receipt of the invoice by the city. If payment is not made within 30 days, interest on the unpaid balance will accrue beginning with the 31st day at the rate of 1.0 percent per month or the maximum interest rate permitted bylaw, whichever is less. Such ihterest will become due and payable at the time said overdue payment is made. City agrees to assess and pay the late charge without further invoicing from Contractor. In the event the city questions some element of an invoice, that fact shall be made known to the Consultant immediately. Consultant will help effect resolution and transmit a revised invoice as necessary. Amounts not questioned by city shall be promptly paid to Consultant in accordance with the above payment procedures. S. EARLY TERMINATION OF AGREEMENT The City and the Consultant, by mutual written agreement, may terminate this Agreement at any time. The City, on thirty (30) days written notice to the Consultant, may terminate this Agreement for any reason deemed appropriate in Agreement for Services 2 ........." ,- ~.._. ..~_ ..__..~~ _ '--"--_~".H""___'___'__---"-""'___~_ ... its sole discretion. Either the city or the Consultant may terminate this Agreement in the event of a breach of the Agreement by the other. Prior to such termination, however, the party seeking the termination shall give to the other party written notice of the breach and of the party's intent to terminate. If the party has not entirely cured the breach within fifteen (15) days of the notice, then the party giving the notice may terminate the Agreement at any time thereafter by giving a written notice of termination. 6. PAYMENT ON EARLY TERMINATION In the event of termination under section 5, EARLY TERMINATION OF AGREEMENT, the City shall pay the Consultant for work performed in accordance with the Agreement prior to the termination date plus any reasonable termination expenses incurred. In the event of termination under section 5, EARLY TERMINATION OF AGREEMENT, by the Consultant due to a breach by the City, then the City shall pay the Consultant as provided above. In the event of termination under Section 5, EARLY TERMINATION OF AGREEMENT, by the City due to a breach by the Consultant, then the City shall pay the Consultant as provided in this section, subject to set off of excess costs, as provided for in section 7, REMEDIES. In the event, of early termination, all of the Consultant's work product will become and remain property of the City. ...... 7 . REMEDIES In the event of termination under section 5, EARLY TERMINATION OF AGREEMENT, by the City due to a breach by the Consultant, then the City may complete the work either itself, by agreement with another consultant or by a combination thereof. In the event the reasonable cost of completing the work exceeds the amount actually paid to the Consultant hereunder plus the remaining unpaid balance of the compensation provided under Section 3, COMPENSATION, the Consultant shall pay to the City the reasonable amount of the excess. The remedies provided to the City under Section 5, EARLY TERMINA- TION OF AGREEMENT and section 7, REMEDIES, for a breach by the Consultant shall not be exclusive. The city also shall be entitled to any other equitable and legal remedies that are available. In the event of breach of this Agreement by the City, then the Agreement for Services 3 ..,..... . ""~'._' "-"-r-"-~-""".."-'-'--"'" __"__"'~__'"_u_,_ .... Consultant's remedy shall be limited to termination of the Agreement and receipt of payment as provided in Section 5, EARLY TERMINATION OF AGREEMENT, and section 6, PAYMENT ON EARLY TERMINATION. 8. CITY PROJECT MANAGER The city's Project Manager shall be Frank Sinclair or such other person as shall be designated in writing by the Director of Public Works. The Project Manager is authorized to approve work and billings hereunder, to give notices referred to herein, to terminate this Agreement as provided herein and to carry out any other city action referred to herein. 9. COMPLIANCE WITH LAWS In connection with these activities under this Agreement, the Consultant shall comply with all applicable federal, state and local laws and regulations. 10. OREGON LAW AND FORUM This Agreement shall be construed according to the laws of the State of Oregon. Any litigation between the City and the Consultant arising under this agreement or out of work performed under this Agreement shall occur, in the state courts, in the Marion County Court having jurisdiction thereof, and in the federal courts, in the United State Dfstrict Court for the District of Oregon. 11. INDEMNIFICATION FOR PUBLIC LIABILITY AND PROPERTY DAMAGE The Consultant shall hold harmless, defend, and indemnify the city and the city's officers, agents, and employees against all claims, demands, actions, and suits (including all reasonable attorney fees and costs) brought against any of them arising from the Consultant's negligent or intentional misconduct or subconsultant's negligent or intentional misconduct arising from the work under the Agreement. 12. WORKERS' COMPENSATION INSURANCE The Consultant, its sUbconsultant's, and all employers working under this Agreement are subject employers under the Oregon workers' compensation law and shall comply with ORS 656.017 which Agreement for Services 4 ..........-. -- '--'-.-"T"'- ----.-.------- requires them to provide workers' compensation coverage for all their subject workers. A certificate of insurance, or copy thereof, shall be attached to this Agreement as Attachment D, if applicable, and shall be incorporated herein. The Consultant further agrees to maintain workers' compensation insurance coverage for the duration of this Agreement. In the event the Consultant's workers' compensation insurance coverage is due to expire during the term of this Agreement, the Consultant agrees to timely renew its insurance, either as a carrier-insured employer or a self-insured employer, as provided by Chapter 656 of the Oregon Revised statutes, before its expiration and the Consultant agrees to provide the city such further certification of workers' compensation insurance as renewals of said insurance occur. 13. ASSIGNMENT The Consultant shall not assign this Agreement, in whole or in part, or any right or obligations hereunder, without the prior written approval of the City. 14. INDEPENDENT CONTRACTOR STATUS The Consultant agrees that: (a) The Consultant is engaged as an independent contractor and will be responsible for any federal, state and local taxes and fees applicable to payments hereunder. (b) The Consultant, its subconsultants, and their employees are not employees of the city and are not eligible for any benefits through the City including, without limitation, federal social security, health benefits, workers' compensation, unemployment compensation, and retirement benefits. 15. NOTICE Any notice provided for under this Agreement shall be sufficient if in writing and delivered personally to the following addressee or deposited in the United state Mail, postage prepaid, certified mail, return receipt requested, addressed as follows, or to such other address as the receiving party hereafter shall specify in writing: If to the city: Frank Sinclair city of Woodburn 270 Montgomery Street Woodburn, OR 97071 Agreement for Services 5 --. -_....~.__..,,_..~.._..._-- ............- If to the Consultant: Gordon Merseth, PE P.O. Box 82746 Portland, OR 97282 16. SEVERABILITY If any provision of this Agreement is found to be illegal or unenforceable, this Agreement nevertheless shall remain in full force and effect and the provision shall be stricken. 17. INTEGRATION This Agreement contains the entire agreement between the City and the Consultant and supersedes all prior written or oral discussions or agreements. 18. FUNDS The City certifies that sufficient funds are available and authorized for expenditure to finance the cost of this Agreement. 19. COMMENCEMENT OF WORK The Consultant agrees that work being done pursuant to this Agreement will not be commenced until after: (a) Workers' compensation insurance is obtained, as outlined in section 12, WORKERS' COMPENSATION INSURANCE; and This 'Agreement is fully executed by the parties and approved by the city Attorney's Office; and, (b) 20. MAINTENANCE OF RECORDS The Consultant shall maintain records on a current basis to support its billings to the city. The city or its authorized representative shall have the authority to inspect, audit and copy, on reasonable notice and from time to time, any records of the Consultant regarding its billings or its work hereunder. The Consultant shall retain these records for inspection, audit and copying for three (3) years from the date of completion or termination of this Agreement. 21. AUDIT OF PAYMENTS The City, either directly or through a designated representative, Agreement for Services 6 .....- .. '---'-,-.--------- ,....,...."_.~ ....,...-... ',,_..q..., may audit the records of direct costs and expenses of the Consultant at any time during the three (3) year period established by Section 20, MAINTENANCE OF RECORDS. If an audit discloses that payments to the Consultant under section 3, COMPENSATION, and section 4, BILLING AND PAYMENT PROCEDURE, were in excess of the amount to which the Consultant was entitled, then the Consultant shall repay the amount of the excess to the city. 22. LXABXLXTY XNSURANCE The Consultant shall maintain public liability and property damage insurance that protects the Consultant and the City and its officers, agents and employees from any and all claims, demands, actions and suits for damage to property or personal injury, including death, arising from the Consultant's work under this Agreement. The insurance shall provide coverage for not less than $200,000 for personal injury to each person, $500,000 for each occurrence, and $500,000 for each occurrence involving property damage; or a single limit policy of not less than $500,000 covering all claims per occurrence. The limits of the insurance shall be subject to statutory changes as to maximum limits of liability imposed on municipalities of the State of Oregon during the term of the Agreement. The insurance shall be without prejudice to coverage otherwise existing and shall name as additional insureds the City and its officers, agents and employees. Notwithstanding the naming of additional insureds, the insurance shall protect each insured in the same manner as though a separate policy had been issued to each, but nothing herein shall operate to increase the insurer's liability as set forth elsewhere in the policy beyond the amount or amounts for which the insurer would have been liable if only one person or interest had been named~s insured. The coverage must apply as to claims between insureds on the policy. The insurance shall provide that the insurance shall not terminate or be canceled without thirty (30) days written notice first being given to the City Auditor. If the insurance is canceled or terminated prior to completion of the Agreement, the Consultant shall provide a new policy with the same terms. The Consultant agrees to maintain continuous, uninterrupted coverage for the duration of the Agreement. The insurance shall include coverage for any damages or injuries arising out of the use of automobiles or other motor vehicles by the Consultant. The Consultant shall maintain on file with the city Recorder a certificate of insurance certifying the coverage required under subsection (a). The adequacy of the insurance shall be subject to the approval of the City Attorney. Failure to maintain liability insurance shal.l be cause for immediate termination of this Agreement by the City. Agreement for Services 7 ....,..- . ."....-.T.......-............ ._..."".....".._" -'''- Consultant and city waive all rights of subrogation against each other and their directs, officers, partners, commissioners, officials, agents, subconsultants, and employees for damages or loss covered by property insurance during and after the completion of the Services, but only in so far as such party is compensated by such insurance for such loss or damage. 23. BREACH OF AGREEMENT The City or the Consultant shall breach this Agreement if it fails to perform any substantial obligation under the Agreement, except that, neither the city nor the Consultant shall have breached this Agreement by reason of any failure to perform a substantial obligation under the Agreement if the failure arises out of causes beyond its control and without its fault or negligence. Such causes may include, without limitation, acts of God or the public enemy, acts of the federal, state or local governments, fires, floods, epidemics, volcanic eruptions, earthquakes, quarantine restrictions, strikes, freight embargoes, and unusually severe weather. Should either the city or the Consultant fail to perform because of a cause described in this subsection, the city and the Consultant shall make a mutually acceptable revision in section 1, SCOPE OF CONSULTANT SERVICES, section 2, SCOPE OF CITY SERVICES, or section 3, COMPENSATION. 24. ARBITRATION Any dispute arising out of or in connection with this Agreement, which is not settled by mutual agreement of the Consultant and the city within sixty (60) days of notification in writing by either party, shall be submitted to an arbitrator mutually agreed upon by the parties. In the event the parties cannot agree on . the arbitrator;' then the arbitrator shall be appointed by the Presiding Judge (Civil) of the Circuit Court of the State of Oregon for the County of Marion. The arbitrator shall be selected with thirty (30) days from the expiration of the sixty (60) day period following notification of the dispute. The arbitration, and any litigation arising out of or in connection with this Agreement, shall be conducted in Woodburn, Oregon, shall be governed by the laws of the state of Oregon, and shall be as speedy as reasonably possible. The applicable arbitration rules for the Marion County courts shall apply unless the parties agree in writing to other rules. The arbitrator shall render a decision within fortyfive (45) days of the first meeting with the Consultant and the City. Insofar as the Consultant and the City legally may do so, they agree to be bound by the decision of the arbitrator. Notwithstanding any dispute under this Agreement, whether before or during arbitration, the Consultant shall continue to perform undisputed portions of the work pending resolution of the Agreement for Services 8 ~. '''-,_..'~ dispute, and the city shall make payments as required by the Agreement for undisputed portions of the work. 25. AMENDMENTS The City and the Consultant may amend this Agreement at any time only by written amendment executed by the city and the Consultant. Unless otherwise provided, any amendment that increases the amount of compensation payable to the Consultant must be approved by resolution of the City Council. The Project Manager may agree to and execute any other amendment on behalf of the City. Any change in the Scope of Consultant Services shall be deemed an amendment subject to renegotiation of the compensation and schedule for the project. 26. PROGRESS REPORTS The Consultant shall provide monthly progress reports to the Project Manager. Each progress report shall contain the following information: Names of individuals involved, work completed, work anticipated for next reporting period, billing status, update in schedule, and any requests for information that are outstanding. 27. PAYMENTS TO VENDORS AND SUBCONSULTANTS The Consultant shall pay all suppliers, lessors and contractors providing it services, materials, or equipment for carrying out its obligations under this Agreement in a timely manner. The Consultant shatt not take or fail to take any action in a manner that causes the City or any materials that the Consultant provides hereunder to be subject to any claim or lien of any person without the City'S prior written consent. 28. STANDARD OF CARE The standard of care applicable to Consultant's services will be the degree of skill and diligence normally employed by professional engineers performing the same or similar services. The Consultant will reperform any services not meeting this standard without additional compensation. 29. OPINION OF COST, FINANCIAL CONSIDERATIONS, AND SCHEDULES In providing opinions of cost, financial analyses, economic feasibility projections, and schedules for the project, the Agreement for Services 9 ...- ._~_.- ~---'""-""-" ~---". --_.~-~-_.~~---^-~-~_._~ .,.-,.-- Consultant has no control over cost or price of labor and materials; unknown or latent conditions of existing equipment or structures that may affect operation or maintenance costs; competitive bidding procedures and market conditions; time or quality of performance by third parties; quality, type, management, or direction of operating personnel and other economic and operational factors that may materially affect the ultimate project cost or schedule. Therefore, the Consultant makes no warranty that the city's actual project costs, financial aspects, economic feasibility, or schedules will not vary from the Consultant's opinions, analyses, projects, or estimated. 30 . CONSEQUENTIAL DAMAGES The fullest extent permitted by law, Consultant shall not be liable to city for any indirect, or consequential damages resulting in any way from the performance of the work. 31. THIRD PARTY RIGHTS Nothing in this Agreement shall be construed to give any rights or benefits to anyone other than City and Consultant. APPROVED BY THE CONSULTANT:. By: Title: Consultant: '.' Date: Own r ~t)1JEHl5EL (8. I C;Ci3 . Tax 1D No. 543-46-6669 APPROVED FOR THE CITY OF WOODBURN: By: cy41 )(~1 Len Kelley Mayor November 23, 1993 Name: Title: Date: Agreement for Services 10 --r- .,....." ,_." ."'-r-'."''''-''---''-'