Big Creek Dam RFP - Alternative Analysis 5-14-25.pdf

Request for Proposals Big Creek Dam Alternative Analysis

REQUEST FOR PROPOSALS

BIG CREEK DAM ALTERNATIVE ANALYSIS

DEADLINE FOR RECEIPT OF PROPOSAL: June 4th, 2025 by 2:00 P.M.

INFORMATION CONTACT: Chris Beatty, PE

Engineering Department 169 SW Coast Highway Newport, Oregon 97365 Phone 541.574.3376 Fax 541.265.3301 c.beatty@newportoregon.gov www.newportoregon.gov

The City may cancel this proposal, or reject all proposals for failure to comply with procedures or requirements, or if the City determines it is in the public's best interest to do so. The City will not schedule a pre-qualification meeting for this solicitation.

mailto:c.beatty@newportoregon.gov https://nam12.safelinks.protection.outlook.com/?url=http%3A%2F%2Fwww.newportoregon.gov%2F&data=05%7C02%7CB.Crawford%40NewportOregon.gov%7Cdc0bfcd2acc646faace508dccd185011%7C6bf668894e6249d0ba361f2ed339bd1c%7C0%7C0%7C638610751868378520%7CUnknown%7CTWFpbGZsb3d8eyJWIjoiMC4wLjAwMDAiLCJQIjoiV2luMzIiLCJBTiI6Ik1haWwiLCJXVCI6Mn0%3D%7C60000%7C%7C%7C&sdata=VuO1CcmMxmhkyEaLVap%2FO09Z9zGIAWv%2F2FcdFtTcTJE%3D&reserved=0

SECTION 1 - INTRODUCTION

Project Description

The City of Newport (City), Oregon is located on the central Oregon Coast at the mouth of the Yaquina River. The City has approximately 10,000 permanent residents and many vacation properties and seasonal visitors. In addition, the City of Newport hosts a significant fishing industry, the Rogue Brewery, and a large marine research community including the NOAA Pacific Fleet Headquarters, Hatfield Marine Science Center, and the Oregon Coast Aquarium. Additional information on the City of Newport is available on the City of Newport's webpage:

http://www.newportoregon.gov and at the City of Newport Chamber of Commerce web page:

www.newportchamber.org

The City of Newport has been working on a Big Creek Dam Replacement Project since 2011.

The Big Creek Dam Replacement Project would replace the two existing earthen Big Creek Dams that have been deemed unsafe by the Oregon Department Water Resources Department, Dam Safety Program and are at risk of failure, either due to structural deficiencies or during a seismic event. The new singular roller-compacted dam would enlarge the upper Big Creek Reservoir and replace both dams with a single dam, free of structural vulnerabilities that will ensure that the City has a reliable source of water for the community’s future. The two dams are the sole source of water for the entire community of Newport.

The City has hired a consultant, HDR, Inc. to complete the design for the replacement dam. The design is currently at the 30% stage. The city has secured funding from the State and Federal government for design through the 100% stage. A construction estimate was prepared for the 30% design and now the City needs to secure funding for construction of the Dam, which is currently has an estimated cost approaching $200M.

An Alternative Analysis was completed in 2015 by HDR, Inc. A roller-compacted replacement dam was the preferred alternative at that time to replace the two existing earthen dams. Due to the age of the Alternative Analysis and the increasing cost estimate, the City desires to have the services of a professional consultant to develop and assist in preparing an Alternatives Analysis to provide and updated analysis on solutions for a safe, reliable, and feasible water supply consisting of resilient system components that can continue to supply clean water in the event of dam failure caused by existing structural deficiencies or natural disasters. Please refer to SECTION 2 – SCOPE OF WORK.

Project Purpose and Objectives

The purpose of this Alternatives Analysis is to determine what the best option to achieve the objective. The main objective is to provide a safe, reliable, and feasible water supply consisting of resilient system components that can continue to supply clean water in the event of dam failure caused by existing structural deficiencies or natural disasters (e.g., wildfires, earthquakes, tsunami, or large storm events). The preferred alternative should meet the existing and future needs of the City for the 50-year planning horizon.

RFP Schedule

Proposals must be received by the City of Newport by no later than 2:00 PM on June 2, 2025. The proposals can be hand delivered to 169 SW Coast Highway Newport, Oregon 97365, Attention Chris http://www.newportoregon.gov/ http://www.newportchamber.org/

Beatty. Proposals can also be sent electronically to c.beatty@newportoregon.gov. Timely submission of proposals is the sole responsibility of the proposer. The City reserves the right to determine the timeliness of all submissions. Late responses will not be accepted. The proposal shall list the firm's capabilities and ability to meet the needs of the City as described in this solicitation.

The approximate schedule for the RFP is as follows:

Advertisement of RFP ................................. May 14, 2025 Proposals due at 2 PM ................................ June 4, 2025 Anticipated Approval of Contract ................. July 7, 2025 Completion of Alternatives Analysis ………. 6 months after Approval of Contract

The selection committee will review proposals and recommend a firm for the award. The City will issue a notice of intent to award based on the decision of the selection committee and approval of City Council.

The City will post amendments to this RFP on OREGONBUYS (www.oregonbuys.gov) The City will consider proposals non-responsive if the amendments are not acknowledged in writing.

Reimbursement

All costs for preparing proposals, attending interviews (if applicable), and other efforts in pursuit of this RFP are the Consultant's responsibility.

Proposal Withdrawal

Any firm may withdraw its proposal prior to the final deadline for submission by providing the City with a written request stating the desire to withdraw.

Withdrawal of a proposal will not prejudice the right of a firm to file a new proposal before the deadline.

Rejection or Acceptance of Qualifications

The City expressly reserves the following rights:

1. Reject any or all proposals.

2. Assign any work to any Consultant that it enters into a price agreement with, based on the City's discretionary determination as to which consultant is best suited for the particular work, considering capability, capacity, and price.

3. Engage Consultants in projects less than $100,000 without formal advertising as defined within the City's procurement policy.

Publishing this RFP does not commit the City to any contract, project award, or financial obligation to any of the respondents. The City reserves the right to use whatever means it considers appropriate and prudent when selecting a consultant.

mailto:c.beatty@newportoregon.gov.

http://www.oregonbuys.gov/

Protests

Protests are subject to and must comply with the City's most current Public Contracting Rules.

Public Records

Any information submitted through this RFP process shall be a public record. However, during the evaluation period, the qualifications shall be considered as confidential information. If any proposal contains information that is considered a trade secret under ORS 192.501(2), each sheet containing proprietary information should be marked as follows:

" This data constitutes a trade secret and shall not be disclosed except in accordance with Oregon Public Records Law, ORS Chapter 192."

The City accepts no liability for the inadvertent or unavoidable release of any confidential information submitted, and claims arising out of any public record request for such information shall be at the consultant's expense. Identifying the proposal in whole as a trade secret is not acceptable. Failure to identify a portion of the proposal as a trade secret shall be deemed a waiver of any future claim of that information as a trade secret.

Tax ID Numbers

Consultant(s) must provide Federal and State of Oregon Taxpayer ID Numbers.

Local/State/Federal Requirements

The selected Consultant(s) shall comply with all federal, state and local laws, regulations, executive orders and ordinances applicable to the work under this contract, including, without limitation, the provisions of ORS 279 A, B & C. In addition, the Consultants agree to comply with following:

• Title VI of the Civil Rights Act of 1964;

• Section V of the Rehabilitation Act of 1973;

• Americans with Disabilities Act of 1991 and ORS 659.425;

• all regulations and administrative rules established pursuant to the foregoing laws; and

• all other applicable requirements of federal and state civil rights and rehabilitation statutes, rules, and regulations

Consultant is also subject to the Oregon Worker's Compensation Law and shall comply with ORS 656.017, which requires the provision of Worker's Compensation coverage for all employees working under any contract resulting from this RFP. The City of Newport's programs, services, employment opportunities and volunteer positions are open to all persons without regard to race, religion, color, national origin, sex, age, marital status, disability or political affiliation.

Cooperative Use of Contract

The City of Newport reserves the right to enter into interactive purchasing agreements with other political subdivisions, cities, and towns to conserve resources, reduce procurement costs, and improve the timely acquisition and costs of goods or services. The Consultant(s) may be requested by other parties to enter into interactive purchasing agreements thereby extending to those parties the right to purchase goods or services provided by the Consultant(s) under this contract, pursuant to the terms and conditions stated herein in accordance with OAR 125-246-0400.

SECTION 2 - SCOPE OF WORK

This draft scope of work represents the City's best estimate of the work needed to accomplish the objectives of this project. The City is open to alternative approaches that may deviate from this scope while still meeting project objectives.

The consultant's role will include, but is not limited to, the following:

1. Project Management:

• Project Kick-off Meeting.

• Bi-weekly meetings with City staff.

• General project coordination with City staff and City Consultant’s.

• Brief presentation at City Council meeting.

• Processing invoices.

2. Data Collection:

• Gather existing reports and other information such as geotechnical reports, surveys, water master plans, etc.

• Review 30% plans and other documentation prepared by HDR.

• Make site visit(s) to view existing conditions.

3. Alternative Analysis:

• Evaluate the existing upper and lower Big Creek Dams for its structural integrity both under normal conditions and potential seismic events.

• Assess current water storage capacity and future needs based on project growth and climate change. Compare storage needs with the amounts produced by HDR and the City’s Water System Master Plan currently being prepared by Water Systems Consulting (WSC).

• Evaluate findings by HDR that a replacement dam, and more specifically, a roller compacted replacement dam, is in the best interest of the City.

• Evaluate alternative water sources such as:

o Utilization of wells, or a series of wells, to provide source water to the City’s water treatment plant.

o Desalination.

o Indirect and direct potable reuse.

o Construct new dam and reservoir on Rocky Creek, Siletz River, or other location(s).

• Evaluate alternatives for repair or replacement of the dams/reservoirs on Big Creek such as:

o Repair or replace the two existing dams on Big Creek in their current location.

This alternative mat not meet the storage needs in the future but may be a short-term remedy.

o Enlarge dams in the existing location.

o Construct a new dam on Big Creek. Options could include a new earthen dam, roller-compacted dam, or other methods.

o Investigate the ultimate location of a new dam that is safe, reliable, feasible, and environmentally sensitive.

4. Final Report:

• Compile a final report summarizing the Alternatives Analysis findings, including the recommended option.

• Provide construction cost estimates for each alternative.

• Provide timelines about each option’s useful life.

• Provide advantages and disadvantages of each alternative.

REQUIRED CONSULTANT QUALIFICATIONS

Consultant(s) shall have an in-depth knowledge of municipal dam design and site evaluation. The Consultant(s) need to have a minimum of five years of experience in grant pursuits for agencies similar to the City of Newport.

SECTION 3 - PROPOSAL CONTENT REQUIREMENTS

Proposal format shall have the following organization:

Cover Letter

Each proposal shall include an introductory or cover letter. The consultant may use this section to introduce the proposal and the key provisions of the submittal.

The introductory letter shall include, but not be limited to the following information:

• The name of the firm

• Signature, printed name, and title of a company officer who is authorized to represent the firm.

• Address, phone, email, and other contact information for the firm.

• Federal and state tax ID numbers.

• The following statement: “The consultant accepts all the terms and conditions contained in the Request for Proposals and that this proposal shall be considered valid for 120 days after the submission deadline.”

• The following statement: “All materials and documents acquired or produced by the consultant in conjunction with a resulting contract shall be delivered to and become property of the City of Newport without restriction or limitation of their future use.” Please note the requirements pertaining to confidential information in section 3.7 of this RFP.

Project Approach and Understanding

Provide a detailed description and scope of the Consultant's proposed approach to accomplishing the City's objectives as outlined in the above draft Scope of Work. Clearly describe and explain the reason for any proposed modifications to the methods, tasks, and products identified in the draft Scope of Work outlined in Section 2 of this RFP.

The scope should clearly define:

• Objectives: The purpose of this Alternatives Analysis is to determine what the best option to achieve the objective.The main objective is to provide a safe, reliable, and feasible water supply consisting of resilient system components that can continue to supply clean water in the event of dam failure caused by existing structural deficiencies or natural disasters.

• Actions: Identify and assess all viable dam repair or replacement options including potential, new water sources.

• Deliverables: A comprehensive alternative analysis that includes a schedule, assignment of tasks with clearly defined roles and responsibilities, and a clear communication framework.

• Exclusions: Define what is out of scope, and identify deferred scope.

Project Organization and Team Qualifications

Identification of all provided services by the principal firm and any subcontractors, information regarding the firm(s) assigned to the project including the size of firm(s), and overall capabilities of each as considered relevant to this project. Provide information regarding all personnel assigned as team members to this project including names, prior experience, position, role and level of responsibility in the project. The City reserves the right to reject any proposed firm or team member or to request their reassignment. Identify the project manager by name, and verify the project manager will not change without written approval by the City. The principal consulting firm must assume responsibility for any sub-consultant work and shall be responsible for the day- to-day management and direction of the project.

Project Timeline

Proposed timeline for accomplishing the project, including critical paths and milestones, and specific consulting staff by task based on the draft Scope of Work. Below is the level detailed requested in an example timeline (consultant is encouraged to improve and customize for their RFP submittal)

• Break down the project into phases with specific deadlines, milestones, and deliverables.

• Include milestones for each stage (e.g., identifying alternate water sources, repair/replacement dam options, etc.)

• A proposed timeline could look like:

o Phase 1: Data gathering and site investigation (1-2 months)

▪ Project kick-off meeting

▪ Meeting(s) with City engineering and public works departments to understand the scope and objectives of the project.

▪ Meeting(s) with Big Creek Dam consulting team to understand high level project design, project timeline, and project constraints.

▪ Potential meeting(s) with internal/external stakeholders such as consultants, City Council, etc. to explain the alternatives analysis.

o Phase 2: Development of a comprehensive Alternatives Analysis (2 months)

▪ Milestone: Submittal of DRAFT Funding Plan and Implementation Strategy for City Review o Phase 3: Final review and adjustment of funding plan (1 month)

Project Coordination and Monitoring

Describe the process for ensuring effective communication between the Consultant(s) and the City and for monitoring progress to ensure compliance with approved timeline, budget, staffing, and deliverables.

Fee Schedule

Provide a 2025 fee schedule outlining a list of the commonly recommended key personnel, staff categories, individuals, or sub-consultants making up the project team. Include a forecasted listing of individual billing rates for the 2025 calendar year. The City understands that annual increases are expected. The proposal should describe how annual fee adjustments are to occur.

Similar Project Experience

Specific examples of comparable work, which best demonstrate the qualifications and ability of the team to accomplish the overall goals of the project within the financial and time constraints. Provide names, addresses and telephone numbers of clients associated with each of these projects. Through submission of a proposal, all respondents specifically agree to and release the City of Newport to solicit, secure and confirm information provided.

SECTION 4 - Selection of Proposals

The Selection Committee will score the proposals on the following criteria:

Thoroughness, quality and conciseness of submittal. 20 pts.

Project understanding and approach for accomplishing the City's objectives. 20 pts.

Qualifications of the project manager and project team, and proven 30 pts.

success in completing projects of similar scope.

References from past and present clients. 20 pts.

Project schedule and ability to meet deadlines 10 pts.

100 Points

Proposal shall be no more than 12 pages, including cover letter. Extra material, including resumes, may be included in an appendix and will not count towards page count.

Following the review and scoring process by the City Selection Committee, a consultant will be selected. A Notice of Intent to Award will be made with a seven-day protest period. A detailed scope of work and fee will be prepared by the consultant. The City will review scope and fee and negotiate as required prior to execution of a Professional Service Agreement.

Att: Draft Professional Services Agreement

PROFESSIONAL SERVICES AGREEMENT (rev. 2/2025)

CITY OF NEWPORT, OREGON

DRAFT PROFESSIONAL SERVICES AGREEMENT

<CONTRACT NAME HERE>

THIS AGREEMENT is between City of Newport, an Oregon municipal corporation (City), and __________________________, an _____________________ corporation, which is registered to practice Civil Engineering in the State of Oregon (Consultant).

RECITALS

A. Pursuant to public contracting rule 137-048-_____, the City of Newport (City) solicited proposals for professional Consulting services to assist the City in __________________________ Services.

B. After reviewing all proposals, the City has selected _________________ (Consultant) as a Consultant of Record to provide the proposed services.

C. Consultant is willing and qualified to perform such services.

TERMS OF AGREEMENT

1. Consultant's Scope of Services

Consultant shall perform professional Consulting services related to Civil Engineering. The City is free to utilize other Consultants or consultant as it deems appropriate.

2. Effective Date and Duration

This agreement is effective on execution by both parties and shall expire, unless otherwise terminated or extended, after three years. The parties may extend the term by mutual agreement.

3. Consultant's Fee and Schedules

A. Fee

Fees for services under this Agreement shall be based on time and materials and pursuant to the rates shown in Exhibit A, up to a maximum amount payable of $__________. Consultant may increase the rates shown in Exhibit A on an annual basis, subject to the written approval of the City. Consultant will alert the City when Consultant is increasing its fees. Consultant will bill for progress payments on a monthly basis. In order to determine the maximum monetary limit for each task, Consultant will submit a schedule and a labor hour estimate based on the rates shown in Exhibit A. Consultant will invoice monthly progress payments based on actual time worked on the project. The maximum monetary limit will not be exceeded without prior written approval by the City. Projects partially completed may be paid for in proportion to the degree of completion.

Consultant will be reimbursed for direct charges such as the cost of printing, postage, delivery services, and subconsultant fees. Unless specifically noted in the Task Order, direct charges will be billed at cost without any markup. Office expenses such as computer cost, telephone calls, and overhead expenses are incidental and are included in the hourly rates shown in Exhibit A.

B. Payment Schedule for Basic Fee

Payments shall be made within 30 days of receipt of monthly billings based on the work completed. Payment by the City shall release the City from any further obligation for payment to the Consultant for service or services performed or expenses incurred as of the date of the statement of services. Payment shall be made only for work actually completed as of the date of invoice. Payment shall not be considered acceptance or approval of any work or waiver of any defects therein.

C. Payment for Contingency Tasks

When agreed to in writing by the City, the Consultant shall provide services described as Contingency Tasks in a Task Order.

D. Certified Cost Records

Consultant shall furnish certified cost records for all billings to substantiate all charges.

Consultant’s accounts shall be subject to audit by the City. Consultant shall submit billings in a form satisfactory to the City. At a minimum, each billing shall identify the Task Order under which work is performed, work completed during the billing period, percentage of work completed to date, and percentage of budget used to date for each task.

E. Identification

Consultant shall furnish to the City its employer identification number.

F. Payment – General

1) Consultant shall pay to the Department of Revenue all sums withheld from employees pursuant to ORS 316.167.

2) Consultant shall pay employees at least time and a half pay for all overtime worked in excess of 40 hours in any one week except for individuals under the contract who are excluded under ORS 653.010 to 653.261 or under 29 USC sections 201 to 209 from receiving overtime. Any subcontractors utilized by Consultant under this Agreement will be paid according to the then prevailing wage.

3) Consultant shall promptly, as due, make payment to any person, co-partnership, association or corporation, furnishing medical, surgical and hospital care or other needed care and attention incident to sickness or injury to the employees of Consultant or all sums which Consultant agrees to pay for such services and all moneys and sums which Consultant collected or deducted from the wages of employees pursuant to any law, contract or agreement for the purpose of providing or paying for such service.

4) Consultant shall make payments promptly, as due, to all persons supplying services or materials for work covered under this contract. Consultant shall not permit any lien or claim to be filed or prosecuted against the City on any account of any service or materials furnished.

5) If Consultant fails, neglects or refuses to make prompt payment of any claim for labor, materials, or services furnished to Consultant, sub-consultant or subcontractor by any person as such claim becomes due, City may pay such claim and charge the amount of the payment against funds due or to become due to the Consultant. The payment of the claim in this manner shall not relieve Consultant or its surety from obligation with respect to any unpaid claims.

G. Schedule

Consultant shall provide services under this Agreement in accordance with the Project Schedule.

4. Ownership of Plans and Documents: Records; Confidentiality

A. Definitions. As used in this Agreement, the following terms have the meanings set forth below:

1) Consultant Intellectual Property means any intellectual property owned by

Consultant and developed independently from this Agreement that is applicable to the Services or included in the Work Product.

2) Third Party Intellectual Property means any intellectual property owned by parties other than City or Consultant that is applicable to the Services or included in the Work Product.

3) Work Product means the Services Consultant delivers or is required to deliver to City under this Agreement. Work Product includes every invention, discovery, work of authorship, trade secret or other tangible or intangible item and all intellectual property rights therein, and all copies of plans, specifications, reports and other materials, whether completed, partially completed or in draft form.

B. Work Product

1) Except as provided elsewhere in this Agreement, all Work Product created by Consultant pursuant to this Agreement, including derivative works and compilations, and whether or not such Work Product is considered a “work made for hire” or an employment to invent, shall be the exclusive property of City. City and Consultant agree that such original works of authorship are “work made for hire” of which City is the author within the meaning of the United States Copyright Act. To the extent that City is not the owner of the intellectual property rights in such Work Product, Consultant hereby irrevocably assigns to City any and all of its rights, title, and interest in all original Work Product created pursuant to this Agreement, whether arising from copyright, patent, trademark, trade secret, or any other state or federal intellectual property law or doctrine. Upon City’s reasonable request, Consultant shall execute such further documents and instruments necessary to fully vest such rights in City.

Consultant forever waives any and all rights relating to original Work Product created pursuant to this Agreement, including without limitation, any and all rights arising under 17 USC §106A or any other rights of identification of authorship or rights of approval, restriction or limitation on use or subsequent modifications.

2) In the event Consultant Intellectual Property is necessary for the use of any

Work Product, Consultant hereby grants to City an irrevocable, non-exclusive, non-transferable, perpetual, royalty-free license to use Consultant Intellectual Property, including the right of City to authorize contractors, Consultants and others to use Consultant Intellectual Property, for the purposes described in this Agreement.

3) In the event Third Party Intellectual Property is necessary for the use of any

Work Product, Consultant shall secure on City’s behalf and in the name of City, an irrevocable, non-exclusive, non-transferable, perpetual, royalty-free license to use the Third-Party Intellectual Property, including the right of City to authorize contractors, Consultants and others to use the Third-Party Intellectual Property, for the purposes described in this Contract.

4) In the event Work Product created by Consultant under this Agreement is a derivative work based on Consultant Intellectual Property or is a compilation that includes Consultant Intellectual Property, Consultant hereby grants to City an irrevocable, non-exclusive, non-transferable, perpetual, royalty-free license to use the pre-existing elements of Consultant Intellectual Property employed in the Work Product, including the right of City to authorize contractors, Consultants and others to use the pre-existing elements of Consultant Intellectual Property employed in a Work Product, for the purposes described in this Agreement.

5) In the event Work Product created by Consultant under this Agreement is a derivative work based on Third Party Intellectual Property, or a compilation that includes Third Party Intellectual Property, Consultant shall secure on City’s behalf and in the name of City an irrevocable, non-exclusive, non-transferable, perpetual, royalty-free license to use the pre-existing elements of the Third Party Intellectual Property, including the right to authorize contractors, Consultants and others to use the pre-existing elements of the Third Party Intellectual Property, for the purposes described in this Agreement.

6) To the extent permitted by the Oregon Constitution and by the Oregon Tort

Claims Act, Consultant shall be indemnified and held harmless by City from liability arising out of re-use or alteration of the Work Product by City which was not specifically contemplated and agreed to by the Parties in this Agreement.

7) Consultant may refer to the Work Product in its brochures or other literature that Consultant utilizes for advertising purposes and, unless otherwise specified, Consultant may use standard line drawings, specifications and calculations on other, unrelated projects.

C. Confidential Information

1) Consultant acknowledges that it or its employees, Sub-Consultants, subcontractors or agents may, in the course of performing their responsibilities under this Agreement, be exposed to or acquire information that is the confidential information of City or City’s residents. Any and all information provided by City and marked confidential, or identified as confidential in a separate writing, that becomes available to Consultant or its employees, Sub- Consultants, subcontractors or agents in the performance of this Agreement shall be deemed to be confidential information of City (“Confidential Information”). Any reports or other documents or items, including software, that result from Consultant’s use of the Confidential Information and any Work Product that City designates as confidential are deemed Confidential Information. Confidential Information shall be deemed not to include information that: (a) is or becomes (other than by disclosure by Consultant) publicly known; (b) is furnished by City to others without restrictions similar to those imposed by this Agreement; (c) is rightfully in Consultant’s possession without the obligation of nondisclosure prior to the time of its disclosure under this Agreement; (d) is obtained from a source other than City without the obligation of confidentiality; (e) is disclosed with the written consent of City; or

(f) is independently developed by employees or agents of Consultant who can be shown to have had no access to the Confidential Information; or (g) is required to be disclosed by law, subpoena, or other court order.

2) Consultant agrees to hold Confidential Information in strict confidence, using at least the same degree of care that Consultant uses in maintaining the confidentiality of its own confidential information, and not to copy, reproduce, sell, assign, license, market, transfer or otherwise dispose of, give, or disclose Confidential Information to third parties or use Confidential Information for any purposes whatsoever other than the provision of Services to City under this Agreement, and to advise each of its employees, Sub-Consultants, subcontractors and agents of their obligations to keep Confidential Information confidential. Consultant shall use its best efforts to assist City in identifying and preventing any unauthorized use or disclosure of any Confidential Information.

Without limiting the generality of the foregoing, Consultant shall advise City immediately in the event Consultant learns or has reason to believe that any person who has had access to Confidential Information has violated or intends to violate the terms of this Agreement and Consultant will at its expense cooperate with City in seeking injunctive or other equitable relief in the name of City or Consultant against any such person. Consultant agrees that, except as directed by City, Consultant will not at any time during or after the term of this Agreement disclose, directly or indirectly, any Confidential Information to any person, except in accordance with this Agreement, and that upon termination of this Agreement or at City’s request, Consultant will turn over to City all documents, papers, and other matter in Consultant's possession that embody Confidential Information.

3) Consultant acknowledges that breach of this Section 4, including disclosure of any Confidential Information, will give rise to irreparable injury to City that is inadequately compensable in damages. Accordingly, City may seek and obtain injunctive relief against the breach or threatened breach of this Section 4, in addition to any other legal remedies that may be available. Consultant acknowledges and agrees that the covenants contained herein are necessary for the protection of the legitimate business interests of City and are reasonable in scope and content.

5. Assignment/Delegation

Neither party shall assign or transfer any interest in or duty under this Agreement without the written consent of the other. If City agrees to assignment of tasks to a subcontractor, Consultant shall be fully responsible for the acts or omissions of any subcontractors. Any approval of a subcontractor does not create a contractual relationship between the subcontractor and City.

6. Consultant is Independent Contractor

A. The City’s project director, or designee, shall be responsible for determining whether Consultant’s work product is satisfactory and consistent with this Agreement, but Consultant is not subject to the direction and control of the City. Consultant shall be an independent contractor for all purposes and shall not be entitled to compensation other than the compensation provided for under Section 3 of this Agreement. The City’s acceptance of the work product as satisfactory does not relieve the Consultant from responsibility for any errors in the work product.

B. Consultant is an independent contractor and not an employee of City. Consultant acknowledges Consultant’s status as an independent contractor and acknowledges that Consultant 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 Consultant to provide services under this Agreement are employees of Consultant and not of City.

Consultant 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 Consultant 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 Consultant under the terms of the Agreement, to the full extent of any benefits or other remuneration Consultant receives (from City or third party) as a result of the finding and to the full extent of any payments that City is required to make as a result of the finding.

C. The Consultant 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 Consultant, either directly or indirectly, in connection with the letting or performance of this Agreement, except as specifically declared in writing.

D. Consultant and its employees, if any, are not active members of the Oregon Public

Employees Retirement System.

E. Consultant certifies that it currently has a City business license or will obtain one prior to delivering services under this Agreement.

F. Consultant is not an officer, employee, or agent of the City as those terms are used in

ORS 30.265.

7. Indemnity

A. The City has relied upon the professional ability and training of the Consultant as a material inducement to enter into this Agreement. Consultant represents to the City that the work under this Agreement will be performed in accordance with the professional standards of skill and care ordinarily exercised by members of the Civil 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 a Consultant’s work by the City shall not operate as a waiver or release.

Acceptance of documents by City does not relieve Consultant of any responsibility for design deficiencies, errors, or omissions.

B. Consultant shall indemnify, hold harmless, and defend City and its representatives, officers, directors, and employees from and for any loss, claim, or tort brought by third parties, including legal fees and costs of defending actions or suits, resulting directly or indirectly from the negligent performance, omission, or fault of Consultant and its employees, representatives, and subcontractors. If the loss or claim is caused by the joint concurrent negligence or other fault of City and Consultant, the loss or claim shall be borne by each in proportion to the degree of negligence or other fault attributable to each.

Notwithstanding the foregoing, the Consultant has no duty to defend City against a claim for professional negligence relating to the professional services Consultant provided under this Agreement, except to the extent that the Consultant’s liability or fault is determined by adjudication or alternative dispute resolution or otherwise resolved by settlement agreement, and subject to the proportionate fault limitation, above.

Consultant’s obligations under this Section 7 shall survive the expiration or earlier termination of this Contract.

8. Insurance

Consultant and its subcontractors shall maintain insurance acceptable to City in full force and effect throughout the term of this Agreement as detailed in this section. The 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.

The policy or policies of insurance maintained by the Consultant and its subcontractors shall provide at least the following limits and coverages:

A. Commercial General Liability Insurance

Comprehensive General Liability Insurance covering Bodily Injury and Property Damage on an “occurrence” form with policy limits of at least per occurrence. This coverage shall include Contractual Liability insurance for the indemnity provided under this Agreement in an amount of $2,000,000.

B. Professional Liability

Professional Liability Insurance covering any damages caused by an error, omission or any negligent acts. Combined single limit per claim shall not be less than $1,0300,000, 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

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 Consultant, its subcontractors, if any, and all employers providing work, labor or materials under this Agreement 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 limit workers’ compensation coverage for their workers who work at a single location within Oregon for more than 30 days in a calendar year. Consultants who perform work without the assistance or labor of any employee need not obtain such coverage.

E. Additional Insured Provision

The Commercial General Liability Insurance Policy shall include the City its officers, directors, and employees as additional insureds with respect to this Agreement. Coverage will be endorsed to provide a per project aggregate.

F. Extended Reporting Coverage

If any of the liability insurance is arranged on a “claims made” basis, Extended Reporting coverage will be required at the completion of this Agreement to a duration of 24 months or the maximum time period the Consultant’s insurer will provide if less than 24 months. Consultant will be responsible for furnishing certification of Extended Reporting coverage as described or continuous “claims made” liability coverage for 24 months following Agreement 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 Agreement. 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 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.

I. Certificates of Insurance

As evidence of the insurance coverage required by the Agreement, the Consultant shall furnish a Certificate of Insurance to the City. No Agreement 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 Agreement. A renewal certificate will be sent to the address below ten days prior to coverage expiration.

J. Primary Coverage Clarification

The parties agree that Consultant’s coverage shall be primary to the extent permitted by law.

The parties further agree that other insurance maintained by the City is excess and not contributory insurance with the insurance required in this section.

K. Copy of Policy or Certificate of Insurance

A cross-liability clause or separation of insureds clause will be included in the general liability policy required by this Agreement. Consultant shall furnish City with at least 30-days’ written notice of cancellation of, or any modification to, the required insurance coverages. 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:

Name Title/Dept.

City of Newport 169 SW Coast Highway Newport, OR 97365

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 the required insurance shall not be construed to limit Consultant’s liability under this agreement. The insurance does not relieve Consultant’s obligation for the total amount of any damage, injury, or loss caused by negligence or neglect connected with this Agreement.

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 Consultant. If City terminates the Agreement pursuant to this section, Consultant shall be entitled to payment for services provided prior to the termination date.

10. 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:

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

Consultant, its subcontractors, agents, and employees to provide the services required by this Agreement is for any reason denied, revoked, or not renewed.

Any 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 Agreement) to Consultant, may terminate this Agreement:

1) If Consultant fails to provide services called for by this Agreement within the time specified, or

2) If Consultant fails to perform any of the other provisions of this Agreement, or 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.

C. If City terminates this Agreement, it shall pay Consultant for all undisputed invoices tendered for services provided prior to the date of termination.

D. Damages for breach of Agreement 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 Consultant of any of the terms of this Agreement or to exercise any rights hereunder, should not be construed as a waiver or relinquishment to any extent of its rights to assert or rely upon such terms or rights on any future occasion.

12. Notice

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:

IF TO CITY OF NEWPORT

Name Title/Dept.

City of Newport 169 SW Coast Highway Newport, OR 97365 Telephone E-mail address

IF TO CONSULTANT

The date of deposit in the mail shall be the notice date for first class mail. All other notices, bills and payments shall be effective 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. 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 subcontractors 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.

15. Non-Discrimination

Consultant agrees to comply with all applicable requirements of federal and state statutes, rules, and regulations. By way of example only, Consultant also shall comply with the Americans with Disabilities Act of 1990, ORS 659A.142, and all regulations and administrative rules established pursuant to those laws.

16. 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.

17. Extra Work

Extra work or work on Contingency Tasks is not authorized unless the City authorizes the additional or contingency work in writing. Failure of Consultant to secure written authorization for extra work shall constitute a waiver of all right to adjustment in the Agreement price or Agreement time due to unauthorized extra work and Consultant shall be entitled to no compensation for the performance of any extra work not authorized in writing.

18. Governing Law

This Agreement shall be governed by and construed in accordance with the laws of the State of Oregon, without regard to conflict of law principles. Any action or suits involving any question arising under this Agreement must be brought in the appropriate court of the State of Oregon, and the parties hereby consent to venue in Lincoln County Circuit Court, Oregon, unless exclusive jurisdiction is in federal court, in which case venue shall be in federal district court for the District of Oregon.

19. Compliance with Applicable Law

Consultant shall comply with all federal, state, and local laws and ordinances applicable to the work under this Agreement, including but not…