EXHIBIT A
AGREEMENT NO.
An Agreement between the CITY OF PORTLAND, OREGON (City) and FREIGHTLINER LLC to provide training to existing employees to produce the new Western Star truck model at its Portland truck assembly plant.
RECITALS:
1. A City goal is to retain local industry and its workforce.
2. Freightliner LLC is an existing industry that has re-organized the location of the products it manufactures. In order to encourage Freightliner LLC to maintain its Portland workforce, the City of Portland, State of Oregon, and Worksystems inc. offered Freightliner a package of technical assistance around the retraining of its workforce.
3. The Bureau of Housing and Community Development has $199,000 in General Funds that are available to assist in the retraining of the Freightliner workforce to manufacture the new Western Star truck model.
4. The City Council now desires to enter into an agreement in the amount of $199,000 with Freightliner LLC.
AGREED
I. Scope of Services. Freightliner LLC agrees to provide training to 130 existing employees at its Portland assembly plant to produce the new Western Star model truck. Components of the training include:
- Design of the materials for each employee
- Demonstration of how task should be performed
- Observation of the worker doing the task
- Evaluation of employee
- Check-off when the employee has attained the needed skills.
II. Reporting. Freightliner LLC will report quarterly on the following items:
- Name, title, hire date, wages during training, and time in training for each employee trained
- Documentation that $199,000 in expenses was used for the training of existing workers.
Quarterly reports are due January 30, and April 30. The year-end report is due July 31.
III. Compensation and Method of Payment
A. The City will reimburse Freightliner LLC for actual expenses in accordance with the Budget below, upon submission of an itemized statement of expenditures.
B. Requests for payments may be submitted monthly.
C. Any changes to the approved budget must be approved in writing by the City Project Manager before any reimbursement of funds in new amounts or line items.
D. Total compensation under this Agreement shall not exceed ONE HUNDRED NINETY-NINE THOUSAND DOLLARS ($199,000).
BUDGET
Training Development Cost $50,000
Training Consultants $149,000
TOTAL $199,000
IV. City Project Manager
A. The City Project Manager shall be Howard Cutler or such person as shall be designated in writing by the Director of the Bureau of Housing and Community Development.
B. The City Project Manager is authorized to approve work and billings hereunder, to give notices referred to herein, to terminate the Agreement as provided herein, and to carry out any other City actions referred to herein.
V. General Contract Provisions
A. TERMINATION FOR CAUSE. If, through any cause, Freightliner LLC shall fail to fulfill in timely and proper manner his/her obligations under this Contract, or if Freightliner LLC shall violate any of the covenants, agreements, or stipulations of this Contract, the City shall have the right to terminate this Contract by giving written notice to Freightliner LLC of such termination and specifying the effective date thereof at least 30 days before the effective date of such termination. Notwithstanding the above Freightliner LLC shall not be relieved of liability to the City for damages sustained by the City by virtue of any breach of the Contract by Freightliner LLC, and the City may withhold any payments to Freightliner LLC for the purpose of setoff until such time as the exact amount of damages due the City from Freightliner LLC is determined.
B. TERMINATION FOR CONVENIENCE. The City and Freightliner LLC may terminate this Contract at any time by mutual written agreement. If the Contract is terminated by the City as provided herein, Freightliner LLC will be paid an amount which bears the same ratio to the total compensation as the services actually performed bear to the total services of Freightliner LLC covered by this Contract less payments of compensation previously made.
The City, on thirty (30) days written notice to Freightliner LLC, may terminate this Agreement for any reason deemed appropriate at its sole discretion.
C. NON-DISCRIMINATION. In carrying out activities under this grant, Freightliner LLC shall not discriminate against any employee or applicant for employment because of race, color, religion, sex, age, handicap, familial status or national origin. Freightliner LLC will develop and implement an annual Affirmative Action Plan for the Portland Truck Plant. Such action shall include but not be limited to, the following: employment, upgrading, demotion, or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. Freightliner LLC shall post in conspicuous places, available to employees and applicants for employment, notices provided by the City setting forth the provisions of this nondiscrimination clause. Freightliner LLC shall state that all qualified applicants will receive consideration for employment without regard to race, color, religion, sex, or national origin. Freightliner LLC shall incorporate the foregoing requirements of this paragraph in all of its contracts for work funded under this contract, except contracts governed by Section 104 of Executive Order 11246. Freightliner LLC will comply with the equal employment and non-discrimination requirements of Portland City Code Sections 3.100.005 (City Policies Relating to Equal Employment Opportunity, Affirmative Action and Civil Rights), 3.100.042 (Certification of Contractors), and Chapter 23 - Civil Rights.
D. ACCESS TO RECORDS. The City, or their duly authorized representatives, shall have access to any books, general organizational and administrative information, documents, papers, and records of the Freightliner LLC during normal business hours, which are directly pertinent to this grant, for the purpose of making audit examination, excerpts, and transcriptions. All required records must be maintained by Freightliner LLC for three years after the City makes final payment and all other pending matters are closed.
E. INDEMNIFICATION. Freightliner LLC shall hold harmless, defend, and indemnify the City and the City's officers, agents, and employees against all claims, demands, actions, and suits (including all attorney fees and costs) brought against any of them arising from Freightliner’s training work or any subcontractor’s work under this contract.
F. WORKERS' COMPENSATION INSURANCE.
(a) Freightliner LLC, its subcontractors, if any, and all employers working under this Agreement, are subject employers under the Oregon Worker's Compensation law and shall comply with ORS 656.017, which requires them to provide workers' compensation coverage for all their subject workers. Freightliner LLC further agrees to maintain worker's compensation insurance coverage for the duration of this Agreement.
(b) In the event Freightliner LLC worker's compensation insurance coverage is due to expire during the term of this Agreement, Freightliner LLC agrees to timely renew its insurance, either as a carrier-insured employer or a self-insured employer as provided by Chapter 656 of the Oregon Revised Statutes, before its expiration, and Freightliner LLC agrees to provide the City of Portland such further certification of worker's compensation insurance a renewals of said insurance occur.
(c) If Freightliner LLC believes itself to be exempt from the worker's compensation insurance coverage requirement of (a) of this subsection, Freightliner LLC agrees to accurately complete the City of Portland's Questionnaire for Workers' Compensation Insurance and Qualification as an Independent Contractor prior to commencing work under this Agreement. In this case, the Questionnaire shall be attached to this Agreement and shall be incorporated herein and made a term and part of this Agreement. Any misrepresentation of information on the Questionnaire by Freightliner LLC shall constitute a breach of this Agreement. In the event of breach pursuant to this subsection, City may terminate the agreement immediately and the notice requirement contained in Section (A), TERMINATION FOR CAUSE, hereof shall not apply.
I. LIABILITY INSURANCE.
A) Freightliner LLC shall maintain public liability and property damage insurance that protects Freightliner LLC and the City and its officers, agents, and employees from any and all claims, demands, actions, and suits for damage to property or personal injury, including death, arising from Freightliner LLC work under this Agreement. The insurance shall provide coverage for not less than $200,000 for personal injury to each person, $500,000 for each occurrence, and $500,000 for each occurrence involving property damages; or a single limit policy of not less than $500,000 covering all claims per occurrence. The limits of the insurance shall be subject to statutory changes as to maximum limits of liability imposed on municipalities of the state of Oregon during the term of the agreement. The insurance shall be without prejudice to coverage otherwise existing and shall name as additional insureds the City and its officers, agents, and employees. Notwithstanding the naming of additional insureds, the insurance shall protect each insured in the same manner as though a separate policy had been issued to each, but nothing herein shall operate to increase the insurer's liability as set forth elsewhere in the policy beyond the amount or amounts for which the insurer would have been liable if only one person or interest had been named as insured. The coverage must apply as to claims between insureds on the policy. The insurance shall provide that it shall not terminate or be canceled without 30 days written notice first being given to the City Auditor. If the insurance is canceled or terminated prior to completion of the contract, Freightliner LLC shall provide a new policy with the same terms. Freightliner LLC agrees to maintain continuous, uninterrupted coverage for the duration of the contract. The insurance shall include coverage for any damages or injuries arising out of the use of automobiles or other motor vehicles by Freightliner LLC.
B) Freightliner LLC shall maintain on file with the City Auditor a certificate of insurance certifying the coverage required under subsection (a). The adequacy of the insurance shall be subject to the approval of the City Attorney. Failure to maintain liability insurance shall be cause for immediate termination of this agreement by the City.
In lieu of filing the certificate of insurance required herein Freightliner LLC shall furnish a declaration that Freightliner LLC is self-insured for public liability and property damage for a minimum of the amounts set forth in ORS 30.270.
G. SUBCONTRACTING AND ASSIGNMENT. Freightliner LLC shall not subcontract its work under this contract, in whole or in part, without the written approval of the City. Freightliner LLC shall require any approved subcontractor to agree, as to the portion subcontracted, to fulfill all obligations of the Contract as specified in this contract. Notwithstanding City approval of a subcontractor, Freightliner LLC shall remain obligated for full performance hereunder, and the City shall incur no obligation other than its obligations to Freightliner LLC hereunder. Freightliner LLC agrees that if subcontractors are employed in the performance of this contract, Freightliner LLC and its subcontractors are subject to the requirements and sanctions of ORS Chapter 656, Workers' Compensation. Freightliner LLC shall not assign this contract in whole or in part or any right or obligation hereunder, without prior written approval of the City. Subcontractors shall be responsible for adhering to all regulations cited within this contract.
H. INDEPENDENT CONTRACTOR STATUS. Freightliner LLC is engaged as an independent contractor and Freightliner LLC and will be responsible for any federal, state, or local taxes and fees applicable to payments hereunder.
Freightliner LLC and its subcontractors and employees are not employees of the City and are not eligible for any benefits through the City, including without limitation, federal social security, health benefits, workers' compensation, unemployment compensation, and retirement benefits.
I. REPORTING REQUIREMENTS. Freightliner LLC shall report on its activities in a format and by such times as prescribed by the City.
J. CONFLICTS OF INTEREST. No City officer or employee, during his or her tenure or for one year thereafter, shall have any interest, direct or indirect, in this contract or the proceeds thereof.
No City officer or employees who participated in the award of this contract shall be employed by Freightliner LLC during the period of the contract.
K. OREGON LAWS AND FORUM. This Agreement shall be construed according to the laws of the State of Oregon.
Any litigation between the City and Freightliner LLC arising under this agreement or out of work performed under this Agreement shall occur, if in the state courts, in the Multnomah County court having jurisdiction thereof, and if in the federal courts, in the United States District Court for the State of Oregon.
L. COMPLIANCE WITH LAWS. In connection with its activities under this contract, Freightliner LLC shall comply with all applicable federal, state, and local laws and regulations.
M. INDEPENDENT FINANCIAL AUDITS/REVIEWS. Any grantee receiving $300,000 or more in City funding, in any program year, is required to obtain an independent audit of the City-funded program(s). Any grantee receiving between $25,000 and $300,000 in City funds, in any program year, is required to obtain an independent financial review of the program. Additionally, grantees between $25,000 and $300,000 in federal funds may be required to obtain a full audit, of the program, if the City believes it is warranted. Two copies of all required financial audits or reviews will be submitted to the designated City Project Manager within thirty days of their completion.
N. SEVERABILITY. If any provision of this agreement is found to be illegal or unenforceable, this agreement nevertheless shall remain in full force and effect and the provision shall be stricken.
O. INTEGRATION. This agreement contains the entire agreement between the City and the Freightliner LLC and supercedes all prior written or oral discussions or agreements.
P. PROGRAM AND FISCAL MONITORING. The City through the Bureau of Housing and Community Development shall monitor on a regular basis to assure contract compliance. Such monitoring may include, but are not limited to, on site visits, telephone interviews, and review of required reports and will cover both programmatic and fiscal aspects of the Agreement. The frequency and level of monitoring will be determined by the City Project Manager.
VI. General Grant Provisions Period of Agreement
The term of this Agreement shall be effective as of the date of last signature and shall remain in effect until June 30, 2003. Costs may be incurred under this Agreement from October 1, 2002.
Dated this _____________________ of ______________________, 2002.
CITY OF PORTLAND FREIGHTLINER LLC
___________________ ____________________
Erik Sten David Walker
Commissioner of Public Works Corporate Training Manager
APPROVED AS TO FORM:
_____________________
Jeffrey L. Rogers
City Attorney