RFP 238 - Engineering Consulting Services - ATTACHMENT B PROPOSED CONTRACT.pdf

1 – CONTRACT FOR ENGINEERING CONSULTING SERVICES

ATTACHMENT B

PROPOSED CONTRACT

CONTRACT NO. ______________

FOR ENGINEERING CONSULTING SERVICES

This Contract is made on____________________________between Douglas County ("County") and____________________________________("Contractor") on the following terms and conditions:

1 DEFINITIONS AND USAGE:

1.1. As used in this Contract:

1.1.1. "Amendment" means a written agreement executed by County and Contractor that amends provisions of previously executed Contract Documents.

1.1.2. "Applicable laws" means federal, state, and local codes, acts, statutes, regulations, administrative rules, ordinances, orders, and other legal requirements that affect the Services.

1.1.3. “Architectural, engineering, photogrammetric mapping, transportation planning or land surveying services” has the meaning given that term in ORS 279C.100.

1.1.4. “Assignment” means a written agreement executed by County and Contractor that described and authorizes specific Services.

1.1.5. “Board” means the Douglas County Board of Commissioners.

1.1.6. “Claims” means and includes demands, disputes, claims, actions, arbitration proceedings, and other adversarial proceedings and appeals that are asserted, filed, or prosecuted and any resulting damages, judgments, penalties, expenses, and liabilities.

1.1.7. “Construction Agreement” means any written agreement for the planning, design, construction, alteration, repair, improvement or maintenance of any building, highway, road excavation or other structure, project, development or improvement attached to real estate including moving, demolition or tunneling in connection therewith.

1.1.8. "Contract Administrator" means the officer, employee, or agent of County named in subsection 4.1 below.

1.1.9. "Contract Documents" means this form, Supplemental Conditions, Amendments, exhibits, and documents incorporated by reference.

1.1.10. "Contract Price" means the amounts payable to Contractor for the Services as stated in the Contract Documents.

1.1.11 "Contract Term" means the time during which the Services will be performed as stated in subsection 2.2 below. References to the Contract Term include both the initial term and any Extensions.

1.1.12. "County Counsel" means an attorney or paralegal in the Office of the County Counsel established by Douglas County Code Chapter 2.08.

1.1.13. "Director" means the Director of County's Solid Waste Department.

1.1.14. "Documents" means any book, paper, photograph, drawing, model, sound recording, machine readable electronic record, or other material which contains verbal, numerical, or graphic information regardless of physical form.

1.1.15. "Extension" means both a written agreement between the Parties to extend the Contract Term and the period covered by such agreement.

1.1.16. "Party" or "Parties" means County or Contractor or both.

1.1.17. "Services" means all labor, materials, personal services, opinions, reports, documents, and other work products furnished by Contractor to County pursuant to the Contract Documents.

1.1.18. “Shall”, “will”, and “must” all signify mandatory obligations. "May" signifies a discretionary or permissive act.

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1.2. “Without limitation” will be deemed to follow the words “includes” and “including” when referring to a class of things, occurrences, or conditions.

1.3. When not inconsistent with context, words used in the present tense include the future, words in the plural number include the singular, and words in the singular include the plural.

2 SERVICES:

2.1. The Services are described in Exhibit 1 which is attached to this form. Services must be authorized by an Assignment signed by the Board and Contractor.

2.2. The initial Contract term begins on _____________________________and ends on __________________________. The contract may be extended by written agreement of the parties for up to three successive periods of 12 months each, which will begin on the day following the end of the initial term or the first Extension. The total contract term shall not exceed four years.

2.3. Contractor shall perform the Services promptly and efficiently in accordance with any schedule contained in the Contract Documents. Contractor shall provide progress reports as requested by the Contract Administrator.

2.4. All documents produced by Contractor pursuant to this Contract, including unfinished documents and preliminary documents, will be property of County.

2.5. Contractor shall furnish all labor, materials, equipment, and incidentals that are required for the Services, and shall bear all costs incurred in performance of the Services. Contractor shall be responsible for the means and methods used for the Services. Contractor shall provide and supervise qualified personnel. Contractor and Contractor’s personnel shall possess any licenses and certificates required by law for performing the Services.

3 CONTRACT DOCUMENTS:

3.1. The Contract Documents constitute the entire agreement between County and Contractor concerning the Services. References to "the Contract" or "this Contract" in any Contract Document will be deemed to include all Contract Documents.

3.2. Each Party shall notify the other Party of inconsistencies in the Contract Documents. If inconsistencies occur, the document or provision that will result in the better quality of Services will have priority.

3.3. The Contract Documents may be modified only by written Amendments signed by both parties. Amendments cannot increase the limitation on total payments stated in Subsection 11.2.

3.4. If any provision of the Contract Documents is held by a court to be invalid, it will not affect the validity of other provisions of the Contract Documents.

4 ADMINISTRATION OF CONTRACT:

4.1. Nicholas Frisinger is the Contract Administrator. The Contract Administrator is authorized to oversee Services and approve payment for Services. The Board has exclusive authority to sign Assignments for Services, sign Amendments, and to give notice of default or termination.

4.2. The Director may designate a different Contract Administrator at any time by written notice to Contractor.

4.3. Contractor shall give County notice of persons who are authorized to act on behalf of Contractor on all matters concerning administration of this Contract.

5 INDEMNIFICATION:

5.1. Contractor and the officers, employees, agents, and subcontractors of Contractor are not agents of County as those terms are used in ORS 30.265.

5.2. To the extent allowed by ORS 30.140, Contractor shall defend, indemnify, and hold harmless County and its officers, employees, and agents from all claims for injury to any person or damage to property caused by the negligence or other wrongful acts or omissions of Contractor or officers, employees, agents, or subcontractors of Contractor.

5.3. Contractor will not be responsible for claims caused by the negligence or other wrongful acts or omissions of County or County’s officers, employees, or agents.

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6 LIABILITY INSURANCE:

6.1. While this Contract is in effect, Contractor shall obtain, at Contractor’s expense, and keep in effect during the term of this contract:

6.1.1. A commercial general liability insurance policy.

6.1.2. A comprehensive automobile liability insurance policy.

6.1.3. A professional errors and omissions liability insurance policy.

6.2. Liability coverage must be equal to or greater than the limits for claims made under the Oregon Tort Claims Act (ORS 30.260 to 30.302) with minimum coverage as follows:

6.2.1. Commercial general liability limits of at least $1,000,000 combined single limit per occurrence and $2,000,000 in the aggregate.

6.2.2. Automobile liability limits of at least $1,000,000 combined single limit per accident.

6.2.3. Professional errors and omissions limits of not less than $1,000,000 each occurrence and $3,000,000 in the annual aggregate.

6.3. Insurance required by Subsection 6.1.1 and 6.1.2 must provide “occurrence” coverage and must name Douglas County and its officers, employees, and agents as additional insured by endorsement, including completed operations. Insurance required by Subsection 6.1.3 may provide “claims made” coverage.

6.4. Prior to starting the Services, Contractor shall provide certificates of insurance for coverage required by this section. If the insurance certificate(s) require an endorsement in order for the County to be an additional insured, then Contractor shall provide a separate written endorsement that contains the correct policy number(s) and effective additional insured provisions. A renewal certificate will be provided to County at least 10 days prior to expiration.

6.5. Insurance required of Contractor shall be primary with respect to the interest of County, whose insurance shall be excess and not contributory.

6.6. Policies must include provisions requiring that the insurer provide County advance written notice of cancelation or reduction of Contractor’s insurance coverage. In addition, Contractor itself shall provide immediate written notice to County of any changes in its liability insurance coverage while this Contract is in force, including but not limited to reduction in coverage and changes of insurer(s).

7 COMPLIANCE WITH LAW

7.1. This Contract will be construed in accordance with the laws of the State of Oregon.

Contractor shall comply with all applicable federal, state, and local statutes, ordinances, administrative rules, regulations, and other legal requirements.

7.2. Contractor shall comply with Applicable Laws including ORS 279B.020, ORS 279B.220, ORS 279B.225, ORS 279B.230, and 279B.235 which are incorporated herein.

7.3. Pursuant to ORS 279B.020, no person will be employed for the Services for more than 10 hours in any one day, or 40 hours in any one week, except in cases of necessity, emergency, or where the public policy absolutely requires it. Except for persons who are exempt from overtime pay, persons who perform the Services shall be paid at least time and a half pay for legal holidays specified in a collective bargaining agreement or in ORS 279C.540 and for time worked in excess of 10 hours a day or in excess of 40 hours a week, whichever is greater.

7.4. Contractor is a “subject employer” as defined in ORS 656.005 and shall comply with ORS

656.017. Contractor shall provide workers’ compensation coverage for “subject workers” employed to perform the Services. Before performing any Services, Contractor shall provide a certificate of insurance for workers’ compensation coverage or other proof of coverage, or certify that no subject workers will perform Services.

7.5. Contractor shall not provide or offer to provide any appreciable pecuniary or material benefit to any officer or employee of County in violation of ORS Chapter 244 or County Personnel Rule 20.

4 – CONTRACT FOR ENGINEERING CONSULTING SERVICES

8 ASSIGNMENT: Contractor shall not assign Contractor’s interest in this Contract or enter into subcontracts for any part of the Services without the prior written consent of the Contract Administrator.

9 NOTICES:

9.1. Any notice required by this Contract must be given in writing by personal delivery or mail, unless some other means or method of notice is required by law.

9.2. Notice of default from Contractor must be given to the Director and all other notices to County must be given to the Contract Administrator. County's address for notices is: Douglas County, Attn: Solid Waste Department Director, CH Room 308, Douglas County Courthouse, 1036 SE Douglas Avenue, Roseburg, OR 97470.

9.3. Contractor's address for notices is:

9.4. Each Party will notify the other of any change of address for notices.

10 WAIVER: Compliance with the provisions of this Contract may be waived only by a written waiver signed by the Party waiving its rights. Waiver of compliance with one provision will not be deemed to waive compliance with any other provision.

11 PAYMENT:

11.1. Contractor will be paid only for Services approved by the Contract Administrator at the rates stated in Exhibit 2. Such approval will not be withheld unreasonably.

11.2. Contractor will be paid for the Services and reimbursed for expenses as stated in Exhibit

2. The rates or amounts stated in Exhibit 2 may be increased only by Amendment. If payment is based on hourly fees or other unit prices, Contractor will be paid only for actual hours worked or units provided.

11.3. County will make monthly payments to Contractor for Services. On or before the tenth day of each month, Contractor shall submit an invoice for Services completed during the previous month.

11.4. Invoices must be submitted to Budget Manager, Solid Waste Department, Room 306 Douglas County Courthouse, Roseburg, Oregon 97470. Within 30 days after receipt of an invoice, County will pay Contractor any amount then due as approved by the Contract Administrator, less any amounts withheld by the Contract Administrator to remedy a breach of this Contract and any other amounts that County is authorized or required to withhold by Applicable Laws.

11.5. County may suspend or withhold payments if Contractor fails to comply with requirements of Contract Documents.

11.6. Contractor is engaged by County as an independent contractor in accordance with the standards prescribed in ORS 670.600. Contractor will not be entitled to any benefits that are provided by County to County employees.

11.7. Any provision of this Contract that is held by a court to create an obligation that violates the debt limitation of Article XI, Section 10 of the Oregon Constitution will be void. County’s obligation to make payments under this Contract is conditioned upon appropriation of funds pursuant to ORS

294.305 to 294.565. If County fails to appropriate funds for this Contract for any fiscal year during the Contract term, this Contract will be terminated on June 30 of the last fiscal year for which funds are appropriated.

12 DEFAULT:

12.1. Time is of the essence of this Contract. A Party will be in default under this Contract if that Party fails to comply with any obligation that it has under this Contract within ten days after the other Party gives notice specifying the breach. If the breach specified in the notice cannot be completely cured within the ten day period, a default will not occur if the Party receiving the notice diligently begins curative action within the ten day period and proceeds to cure the breach as soon as practicable.

12.2. Notwithstanding Subsection 12.1, County may declare a default immediately by notice to Contractor if the Director determines that Contractor intentionally or repeatedly breaches material

5 – CONTRACT FOR ENGINEERING CONSULTING SERVICES

provisions of this Contract or if Contractor's breach of contract creates unreasonable risk of injury to any person or damage to property.

12.3. If a default occurs, the Party injured by the default may terminate this Contract and enforce any remedies available under Oregon law. Litigation must be conducted in Circuit Court of the State of Oregon for Douglas County.

13 TERMINATION FOR CONVENIENCE: County may terminate this Contract if the Contract Administrator determines in good faith that termination is in the best interest of the public. The Contract Administrator will endeavor to give Contractor notice thirty days prior to the date of termination under this section, but failure to give notice will not invalidate the decision to terminate.

Termination under this section will not affect the rights of the Parties existing at the time of termination. If Contractor is not in default, Contractor will be paid for Services in progress at the time of termination, and Contractor will be reimbursed for reasonable costs resulting directly from termination. Contractor will not be entitled to recover lost profits or overhead for Services that are precluded by termination under this section.

14 ACTION UPON TERMINATION: Upon receiving notice of termination, Contractor shall cease performance of Services and terminate subcontracts.

CONTRACTOR SHALL NOT PERFORM ANY SERVICES UNTIL CONTRACTOR RECEIVES A

SIGNED COPY OF THIS CONTRACT THAT HAS BEEN ASSIGNED A CONTRACT NUMBER

CONTRACTOR DOUGLAS COUNTY

By By Chair Title By Commissioner Print Name By Commissioner Date Date

REVIEWED AS TO CONTENT REVIEWED AS TO FORM

By By

Director of Solid Waste County Legal Counsel

Date Date

Coding