RFP - W. Olive ADA and Street Improvements.pdf

Request for Proposals W. Olive ADA and Street Improvements Page 1

REQUEST FOR PROPOSALS FOR

W. OLIVE ADA AND STREET IMPROVEMENTS

Envelope(s) shall be sealed and marked with W. OLIVE ADA AND STREET IMPROVEMENTS on the envelope. Respondents must submit one (1) original and three (3) complete hard copies of their proposal and one (1) pdf copy on CD/USB. Proposal must be received by the City by the proposal deadline. Late proposals will not be considered. There will be no formal bid opening.

DEADLINE FOR RECEIPT OF PROPOSAL: Wednesday, March 12, 2025 by 5:00 P.M.

SUBMIT MAILED PROPOSAL TO: Chris Beatty, PE

City Engineer City of Newport 169 SW Coast Highway Newport, OR 97365

DELIVER PROPOSAL TO: Engineering Counter

Newport City Hall

INFORMATION CONTACT: Chris Beatty, PE

(541) 574-3376 c.Beatty@newportoregon.gov

• This request for proposal may be cancelled or any or all proposals may be rejected for failure to comply with procedures or requirements or if the City determines it is in the public interest to do so.

Request for Proposals Schedule:

The City anticipates the following tentative timeline for receiving and evaluating the proposals and selecting a firm/individual for the W. OLIVE ADA AND STREET IMPROVEMENTS. This schedule is subject to change if it is in the City’s best interest to do so.

• Advertise Request for Proposals February 12, 2025

• Deadline to Request Additional Information March 5, 2025

• Last Date for Addenda March 6, 2025

• Proposals Due March 12, 2025 mailto:c.Beatty@newportoregon.gov

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• Evaluation of Proposals Complete April 1, 2025

• Notify Proposers of Interviews (if necessary) April 3, 2025

• Proposers Interviews (if necessary) April 9 - 10, 2025

• Notice of Intent to Award April 16, 2025

• Contract Negotiations April 17, 2025 – May 8, 2025

• City Council Meeting May 19, 2025

• Notice of Intent to Award (7-day protest period) May 20, 2025

• Notice of Award May 27, 2025

• Commencement of Contract (NTP) June 3, 2025

• Construction Spring – Summer 2026

1 Introduction

The City of Newport is soliciting Proposals from qualified Engineers for the W. OLIVE ADA AND STREET IMPROVEMENTS PROJECT. Major project components include the following:

• Project Management

• Site Assessment and Data Gathering

• Topographic and Boundary Surveying and Base Map Preparation

• Existing Pavement Section Evaluation

• Civil Engineering Design Plans, Specifications and Cost Estimating

• Public Outreach

• Bidding, Contract Administration, and Construction Services

• Project Closeout

Refer to Appendix A: Exhibits 1 – 5 for conceptual design.

2 Background

Nye Beach is one of the older neighborhoods in Newport and the primary access to an open beach area, Historic Nye Beach, Performing Arts Center, hotels, restaurants, and many other hospitality attractions.

The neighborhood is a popular tourist destination. W. Olive is one of the primary streets connecting the Nye Beach area to US 101. W. Olive is used by residents and tourists alike, and the pavement is in poor condition and nearing failure.

W. Olive runs through several residential blocks, with walking access challenged by hills and aged concrete surfacing. Pedestrian access is not ideal with uncompliant or non-existent ADA ramps.

The improvements requested in this project will provide a safer and more accommodating experience for pedestrians and will provide pavement surfacing improvements for vehicular travel.

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3 Proposed Scope of Work

Provide all materials and labor to provide professional services for the preparation of plans, specifications, construction and cost estimate (PS&E) for the W. Olive ADA and Street Improvements Project including the following tasks:

TASK 1: PROJECT MANAGEMENT

1. Project Administration:

Consultant shall provide a Project Administration Plan (PAP) to direct, coordinate, and monitor the activities of the project with respect to budget, schedule, and contractual obligations. The (PAP) shall be updated on a biweekly basis and submitted to the City.

2. Project Scoping Meeting:

The consultant will initiate and attend the project kickoff meeting with the City to review the project scope and tasks and to confirm the specific requirements of the project. Consultant shall prepare an agenda for the kickoff meeting, invite necessary attendees, collect data, and discuss the schedule of the project.

3. Coordination Meetings:

Consultant shall provide a minimum of biweekly conference calls and/or meetings between the Consultant and City personnel to review project progress, discuss project challenges and findings, and review early study results. Consultant shall ensure that the City personnel and Consultant team members maintain a shared understanding regarding study direction, objectives, and deliverables.

4. Manage all subconsultants on the design team.

5. Prepare monthly invoices and summaries of budget status to show the costs to date and percent complete of main tasks.

6. Quality Assurance and Quality Control Review:

Consultant shall conduct internal Quality Assurance and Quality Control meetings and follow-up with technical experts as necessary during the course of the project.

TASK 2: SITE ASSESSMENT AND DATA GATHERING

1. Perform Initial site reconnaissance to carefully review existing conditions, take photographs, verify required survey data, and establish issues that will have an impact on the design.

2. Meet with the City to gather any as-builts and/or GIS data.

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TASK 3: TOPOGRAPHIC AND BOUNDARY SURVEY AND BASEMAP PREPARATION

1. Perform a topographic survey of the project corridor.

2. Perform a boundary survey for the project corridor. File a pre-construction survey with Lincoln

County.

3. Prepare an AutoCAD drawing for use in designing the project.

4. File a post-construction survey with Lincoln County.

TASK 4: PAVEMENT EVALUATION AND RECOMMENDATIONS

1. Perform a field investigation to evaluate the condition of the existing pavement section throughout the project corridor.

2. Provide recommendations for pavement rehabilitation alternatives in a pavement report.

TASK 5: CIVIL ENGINEERING DESIGN – PS&E

1. Provide labor, equipment and materials to develop project design and prepare PS&E packages at the 30%, 60%, 90% and 100% bid documents.

2. Pedestrian, and vehicular improvements generally consist of, but is not limited to the following:

• Pavement rehabilitation

• Replacing or adding ADA pedestrian ramps at curb returns

• Replace curb, sidewalk, and driveways where deteriorated

• Replacing existing driveway approaches that are not ADA non-compliant

• Storm sewer improvements where required

TASK 6: PUBLIC OUTREACH

1. Attend and prepare exhibits for one (1) public outreach meeting.

TASK 7: BIDDING, CONTRACT ADMINISTRATION, AND CONSTRUCTION SERVICES

1. Assist City staff in responding to all bidder inquiries during the bid period, provide necessary bid addenda to address bidder questions, prepare contractor bid tabulation, and assist City staff with evaluating bids for accuracy and responsiveness.

2. Attend and assist in the facilitation of a pre-construction conference to define contractor responsibilities, standards, special items of interest to the project, traffic and pedestrian control, property access, communications, and scheduling.

3. Submittal / Shop Drawing Review – Review shop drawings and submittals provided by the contractor. Maintain a submittal log to track submittal status and ensure timely response.

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4. Consult with and advise City staff regarding the acceptability of contractor proposed substitute and “or equal” items.

5. Attend up to three (3) construction progress meetings with City staff and contractor.

6. Consult with and advise City staff on any conflicts with utilities and/or deviations from anticipated field conditions during construction of the project.

7. Provide on-site construction representation at key construction milestones to be determined.

The City will take primary responsibility for daily, on-site construction observation.

8. Conduct project walk-thru, prepare final punch list, and consult with City on completion of remaining work.

TASK 8: PROJECT CLOSEOUT

1. Prepare record drawings based on contractors and City staff compiled list of construction changes. Hard copies and electronic version in AutoCAD format are required.

4 Proposal Content Please limit the number of pages in the proposal to [12] pages, each side of a sheet counts as one (1) page. Front cover, back cover, resumes, and Introductory Letter are not included in the total page count. The City is not interested in brochures, boilerplate, or general information that is not relevant to the project at hand or specifically related to the proposed project team’s experience. Contractors responding to this request are advised to provide a clear and responsive project approach addressing all issues noted in this request and the proposed scope of work.

4.1 Introductory Letter

Each proposal shall include an introductory or cover letter. This letter should:

• Be addressed to Chris Beatty, City Engineer, City of Newport, Oregon and shall be signed by an officer of the firm authorized to bind the firm to all statements made in the RFP. Provide contact information, including telephone number(s), e-mail address(es), and physical address(es) to which correspondence should be addressed.

• Acknowledge the Proposer accepts all terms and conditions contained in the RFP and supporting documents.

• Name the person(s) authorized to represent the Proposer in any negotiations and the name of the person(s) authorized to sign any contract that may result.

• Confirm that applicable licensure, including applicable subconsultants, to practice engineering in the State of Oregon.

4.2 Project Understanding

The proposal should clearly state the proposal team’s understanding of the project requirements, goals, and objectives.

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4.3 Project Approach

The proposed approach to the project should be clearly outlined; including the project team’s methodology for completing all the tasks within the proposed project scope or suggested variations to the proposed scope. Suggested variations from the proposed shall be accompanied by detailed explanation for the reason to consider variations, benefits to the City, project, etc. The approach should clearly identify any subcontractors and what tasks they will be working on.

4.4 Project Schedule

A proposed project timeline for the tasks within the scope of work shall be provided.

4.5 Project Team, Experience, and References

The proposer shall provide a list of projects completed by the contractor and/or subcontractors that are similar in scope and cost to the proposed work. This list shall include the description, location, cost, completion date, and current client contact information for the project.

Provide description of at least five (5) similar projects, by name, scope, location, and date, performed within the last 5 years which best characterize work quality and the capabilities of the Proposer. Detail the type of work that was done that supports the proposition that the team is capable of performing similar work.

5 Selection Criteria The City will screen and rank the proposals based on the criteria outlined in this RFP, using the following matrix:

Content and Evaluation Criteria Maximum Score Possible

Introduction Letter (4.1) 10

Project Understanding (4.2) 30

Project Approach (4.3) 30

Project Schedule (4.4) 20

Experience and References (4.5) 10

Fee Schedule Pass/Fail

Total 100

Interviews if Required 30

Applicants are encouraged to address these criteria in their proposals. Applicants may include any additional information they consider important or beneficial in the consideration of their proposal for this project.

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6 Reimbursement

City of Newport will not be responsible for any costs associated with preparing this proposal.

7 Confidentiality

To the extent permitted, under Oregon Public Records Law, the Proposal shall be considered confidential and shall not be disclosed to the public until after the date and time set forth above for receipt of the Proposal.

8 Limitations

This request does not commit the City of Newport to pay any costs incurred to prepare any proposal.

Further, the City of Newport reserves the right to:

● Accept or reject any and all proposals received as a result of this RFP at any time,

● Negotiate with any of the proposers,

● Cancel the request, in part or in whole, if it is determined to be in the best interest of the City to do so,

● Award to the selected contractor any subsequent contracts, in whole or in part,

● Seek further proposals for this work.

● Seek clarification on any point in any proposal at any phase of the selection process.

9 False or Misleading Statements If the review committee feels, at any time, that a contractor’s proposal contains false or misleading statements, references, or any other matter which does not support a function, attribute, capability, or condition as stated by the firm or firms submitting, the submittal shall be rejected, regardless of the status or the phase of the selection process.

10 Award of Contract Once the final proposal has been selected and the fee proposal accepted or negotiated, the contractor will be asked to enter into a contract for the performance of the work. It is estimated that a contract will be awarded to the selected contractor by approximately May 27, 2025. A Draft Professional Services Contract is attached (see Attachment A).

11 Proposal Withdrawal Any proposer 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.

12 Rejection City of Newport may reject any Proposal not in compliance with all prescribed public contracting procedures and requirements and may reject for good cause all Proposals upon finding that it is in the public interest to do so.

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

C.Beatty Text Box Attachment A

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C.Beatty Text Box Draft Professional Services Agreement

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C.Beatty Squiggly 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.

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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 $1,000,000, 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

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

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.

C.Beatty Squiggly

C.Beatty Squiggly

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 limited to those set forth in ORS 279A, 279B and 279C. While all required contractual provisions are included in Exhibit B, Consultant shall be familiar with and responsible for compliance with all other applicable provisions of the Oregon Public Contracting Code.

20. Conflict Between Terms

This document shall control in the event of any conflict in terms between this document and the RFP and/or proposal.

21. Access to Records

City shall have access to the books, documents, papers and records of Consultant that are directly pertinent to this Agreement for the purpose of making audit, examination, excerpts and transcripts.

22. Audit

Consultant shall maintain records to assure conformance with the terms and conditions of this Agreement, and to assure adequate performance and accurate expenditures within the Agreement period. Consultant agrees to permit City or its duly authorized representatives to audit all records pertaining to this Agreement to assure the accurate expenditure of funds.

23. 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.

24. Industrial Accident Fund Payment

Consultant shall pay all contributions or amount due the Industrial Accident Fund that Consultant or subcontractors incur during the performance of this Agreement.

25. Arbitration

All claims, disputes, and other matters in question between the City and Consultant arising out of, or relating to this Contract, including rescission, reformation, enforcement, or the breach thereof except for claims which may have been waived by the making or acceptance of final payment, may be decided by binding arbitration in City’s sole discretion, in accordance with the Oregon Uniform Arbitration Act, ORS 36.600, et seq. and any additional rules mutually agreed to by both parties. If the parties cannot agree on rules within ten (10) days after the notice of demand, the presiding judge of the Lincoln County Circuit Court will establish rules to govern the arbitration.

A claim by Consultant arising out of, or relating to this Contract must be made in writing and delivered to the City Administrator not less than 30 days after the date of the occurrence giving rise to the claim.

Failure to file a claim with the City Administrator within 30 days of the date of the occurrence that gave rise to the claim shall constitute a waiver of the claim. A claim filed with the City Administrator will be considered by the City Board at the Board’s next regularly scheduled meeting. At that meeting the Board will render a written decision approving or denying the claim. If the claim is denied by the Board, the Consultant may file a written request for arbitration with the City Administrator. No demand for arbitration shall be effective until the City Board has rendered a written decision denying the underlying claim. No demand for arbitration shall be made later than thirty (30) days after the date on which the City has rendered a written decision on the underlying claim. The failure to demand arbitration within said 30 days shall result in the City Board’s decision being binding upon the City and Consultant.

Notice of demand for arbitration shall be filed in writing with the other party to the agreement, subject to applicable statutes of limitation, except as set forth above. The City, if not the party demanding arbitration, has the option of allowing the matter to proceed with binding arbitration or by written notice within five (5) days after receipt of a demand for arbitration, to reject arbitration and require the Consultant to proceed through the courts for relief. If arbitration is followed, the parties agree that the award rendered by the arbitrators will be final, judgment may be entered upon it in any court having jurisdiction thereof, and will not be subject to modifications or appeal except to the extent permitted by Oregon law.

26. Attorney Fees

If suit, action or arbitration is brought either directly or indirectly to rescind, reform, interpret or enforce the terms of this contract, the prevailing party shall recover and the losing party hereby agrees to pay reasonable attorney fees incurred in such proceeding, in both the trial and appellate courts, as well as the costs and disbursements.