City Auditor - City Recorder - Council Ordinance - 177184 Portland Aerial Transportation, Inc. project manangement contract

AGREEMENT FOR PROFESSIONAL SERVICES

This Agreement for Services (Agreement) is between the City of Portland, OR (“City”) and Portland Aerial Transportation, Inc. (“Contractor”).

RECITALS:

Whereas, on July 10, 2002, the City Council passed Resolution 36085, which accepted the Portland Office of Transportation’s Marquam Hill to North Macadam Connector Study and endorsed the recommendations contained therein; and

Whereas, Resolution 36085 acknowledged the role of Portland Aerial Transportation, Inc (“PATI”) as the project sponsor for the aerial tram; and

Whereas, Resolution 36085 directed the Portland Office of Transportation and PATI to work together to resolve ownership and operational issues; and

Whereas, on November 13, 2002, the City Council passed Resolution 36112 and approved the Design Development Phase work program related to the international design competition; and

Whereas, PATI, in collaboration with the Portland Office of Transportation has developed an additional work program to be conducted parallel to the design competition and provide for project management and resolution of outstanding issues regarding operation, maintenance and construction of the tram; and

Whereas, PATI has secured private sector commitments for funding of fifty percent of the parallel work program; and

Whereas, the additional work proposed by PATI is essential to the timely advancement of the project and necessary to be completed before the City Council can approve imitating final design and construction in Fall 2003.

AGREEMENT:

1. SCOPE OF CONTRACTOR SERVICES

(a) The Contractor shall, through subcontractors and its volunteer Board of Directors and with the assistance of the City, oversee and carry out project management, and Design Development Phase work preparatory to final design and construction. The specific services to be provided by the Contractor shall be in accordance with the detailed scope of work and budget as set forth in Exhibit A to this Agreement.

(b) The Contractor shall endeavor to carry out the services required by the

Agreement substantially in conformance with the schedule included in the scope of services and marked as Exhibit B to this agreement. However, the parties recognize that timely completion of some of the critical tasks set forth in the schedule are subject to the performance of others that are not a party to this Agreement or working under the direction of the Contractor.

(c) The services required by the Agreement do not include final design or actual construction of the Project. If the Project is pursued beyond the Design Development Phase, agreements between the City and Contractor for these activities may or may not be the subject of future negotiations.

2. SCOPE OF CITY SERVICES

The City will assist the Contractor in carrying out the requirements of this Agreement. The following sets out the general form of that assistance:

(a) The City Commissioner-in-Charge of the Portland Office of Transportation will serve on the Board of Directors of Portland Aerial Transportation, Inc. as the City's representative.

(b) Provide the services of a City Project Manager and other City Staff to work on a day-to-day basis with the Contractor and its subcontractors, to assist the Contractor in directing the Design Development Phase and to coordinate Public, City and other governmental requirements, review and approval procedures.

3. COMPENSATION

(a) The total estimated cost of performing the scope of work detailed in Exhibit A is $200,000.00. This cost will be equally shared between the Contractor and the City. The Contractor shall advance funds in the amount of $100,000.00 and provide proof thereof to the City. The City shall pay the Contractor for fifty percent of its actual costs of subcontractors and expenses incurred in carrying out the requirements of this Agreement in the maximum amount of $100,000.00 provided that the compensation paid to the Contractor shall not exceed the following maximum amounts for each category of work set out in subsection 1(a) SCOPE OF CONTRACTOR SERVICES:

(1) Project Management $39,600

(2) Master Scheduling $ 7,200

(3) Oversight and Coordination $24,000

(4) Capital Plan Review $10,200

(5) Operations & Maintenance Plan $18,000

(6) Construction Alternatives Analysis $23,400

(7) Public Information $21,600

(8) Selection Process $18,000

(9) Anticipated Expenses $ 5,000

(10) Contingency $33,000

TOTAL $200,000

(b) The City and Contractor, upon written agreement may reallocate the maximum amounts for the categories of work set out in subsection 3(a) provided that the total amount to be paid by the City does not exceed the Total Maximum Compensation set forth in subsection 3(a). Allocations from contingency must be approved by the City Project Manager prior to expense being incurred by the Contractor.

(c) The payments made by the City under this Agreement shall be full compensation for work performed, for services rendered, and for all labor materials, supplies, equipment and incidentals necessary to perform the work and services required by this Agreement.

4. BILLING AND PAYMENT PROCEDURE

(a) The Contractor's billing and City's payment procedures shall be as follows: No more frequently that monthly, the Contractor shall submit invoices to the Project Manager. The invoices shall include a statement of current expenditures, previous billings, total costs to date and the allocation of the costs to the appropriate workscope task. All invoices shall bear the signature of a representative of the Contractor.

(b) The City shall pay the Contractor within 30 days of receipt of the invoice.

5. EFFECTIVE AND TERMINATION DATES

This Agreement shall be effective as of January 8, 2003, and shall terminate on December 31, 2003, unless extended by a written amendment to this Agreement. The City will acknowledge costs incurred by the Contractor in association with this contract between December 12, 2002 and January 8, 2003, as part of the Contractor’s $100,000 contribution to this project.

6. EARLY TERMINATION OF AGREEMENT

(a) The City and the Contractor, by mutual written agreement, may terminate this Agreement at any time.

(b) The City, on thirty (30) days written notice to the Contractor, may terminate this Agreement for any reason deemed appropriate in its sole discretion.

(c) Either the City or the Contractor may terminate this Agreement in the event of a breach of the Agreement by the other. Prior to such termination, however, the party seeking the termination shall give to the other party written notice of the breach and of the party's intent to terminate. If the party has not entirely cured the breach within fifteen (15) days of the notice, then the party giving the notice may terminate the Agreement at any time thereafter by giving a written notice of termination.

(d) The Contractor, on thirty (30) days notice to the City, may terminate this Agreement in the event that the Project proves to be unfeasible due to, for example, absence of timely capital or operating funding commitments, requirements for significant changes in the Project design, significant cost increases and other causes outside of the Contractor's control.

7. PAYMENT ON EARLY TERMINATION

(a) In the event of termination undersubsection-6(a), 6(b) or 6(d), EARLY TERMINATION OF AGREEMENT, hereof, the City shall pay the Contractor for work performed in accordance with the Agreement prior to the termination date.

(b) In the event of termination under subsection 6(c), EARLY TERMINATION OF AGREEMENT, hereof, by the Contractor due to a breach by the City, then the City shall pay the Contractor as provided in subsection (a) of this section.

(c) In the event of termination under subsection 6(c), EARLY TERMINATION OF AGREEMENT, hereof, by the City due to a breach by the Contractor, then the City shall pay the Contractor as provided in subsection (a) of this section, subject to set off of excess costs, as provided for in section 8(a), REMEDIES.

(d) In the event of early termination all of the Contractor's work product will become and remain property of the City.

8. REMEDIES

(a) In the event of termination under subsection 6(c), EARLY TERMINATION OF AGREEMENT, hereof, by the City due to a breach by the Contractor, then the City may complete the work either itself, by agreement with another contractor or by a combination thereof. In the event the cost of completing the work exceeds the remaining unpaid balance of the compensation provided under section 3, COMPENSATION, hereof, then the Contractor shall pay to the City the amount of the excess.

(b) The remedies provided to the City under section 6, EARLY TERMINATION OF AGREEMENT and section 8, REMEDIES, hereof, for a breach by the Contractor shall not be exclusive. The City also shall be entitled to any other equitable and legal remedies that are available.

(c) In the event of breach of this Agreement by the City, then the Contractor's remedy shall be limited to termination of the Agreement and receipt of payment as provided in section 6(c), EARLY TERMINATION OF AGREEMENT, and section 7(b), PAYMENT ON EARLY TERMINATI0N, hereof.

9. CITY PROJECT MANAGER

(a) The City Project Manager shall be Matt Brown or such other person as shall be designated in writing by the Director of the Office of Transportation.

(b) The Project Manager is authorized to approve work and billings hereunder, to give notices referred to herein, to terminate this Agreement as provided herein and to carry out any other City actions referred to herein.

10. COMPLIANCE WITH LAWS

(a) In connection with its activities under this Agreement, the Contractor shall comply with all applicable federal, state and local laws and regulations.

(b) In the event the Contractor provides goods or services to the City in the aggregate in excess of $2,500.00 per fiscal year, the Contractor agrees it has certified with the City's Equal Employment Opportunity certification process.

11. OREGON LAW AND FORUM

(a) This Agreement shall be construed according to the laws of the, State of Oregon.

(b) Any litigation between the City and the Contractor 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 District of Oregon.

12. INDEMNIFICATION

(a) Indemnification for Public Liability and Property Damage

The Contractor shall hold harmless, defend and indemnify for public liability and property damage the City of Portland, and the City's officers, agents, and employees against all claims, demands, actions, and suits (including all attorney's fees and costs) brought against any of them arising from the Contractor's work or any subcontractor's work under this Agreement

(b) Indemnification for Professional Liability

The Contractor shall hold harmless, defend and indemnify for professional liability the City of Portland, 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 the Contractor's negligent acts or omissions, or any subcontractor's negligent acts or omissions under this Agreement.

13. WORKERS' COMPENSATION INSURANCE

(a) The Contractor, its subcontractors, if any, and all employers working 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 for all their subject workers. A certificate of insurance, or copy thereof, shall be attached to this Agreement, if applicable, and shall be incorporated herein and made a term and part of this Agreement the Contractor further agrees to maintain workers' compensation insurance coverage for the duration of this Agreement.

(b) In the event the Contractor's workers' compensation insurance coverage is due to expire during the term of this Agreement, the Contractor agrees to timely renew its insurance, either as a carrier-insured employer or a self-insured employer, as provided by Chapter 656 of the Oregon Revised Statutes, before its expiration and the Contractor agrees to provide the City of Portland such further certification of workers' compensation insurance as renewals of said insurance occur.

(c) The Contractor agrees to accurately complete the City of Portland's Questionnaire for Workers' Compensation Insurance and for Qualification as an Independent Contractor prior to commencing work under this Agreement. The Questionnaire is attached to this Agreement as EXHIBIT C and shall remain attached to this Agreement and become a part thereof as if fully copied herein. Any misrepresentation of information on the Questionnaire by the Contractor shall constitute a breach of this Agreement. In the event of breach pursuant to this subsection, the City may terminate the Agreement immediately and the notice requirement contained in subsection 6(c), EARLY TERMINATION OF AGREEMENT, hereof, shall not apply.

14. SUBCONTRACTING

(a) The Contractor shall not subcontract its work under this Agreement, in whole or in part, without the written approval of the City. The Contractor shall require any approved subcontractor to agree as to the portion subcontracted, to fulfill all obligations of the Contractor as specified in this Agreement. Notwithstanding City approval of a subcontractor, the Contractor shall remain obligated for full performance hereunder, and the City shall incur no obligation other than its obligations to the Contractor hereunder. The Contractor agrees that if subcontractors are employed in the performance of this Agreement, the Contractor and its subcontractors are subject to the requirements and sanctions of ORS Chapter 656, Workers' Compensation.

(b) The City has approved the following subcontractors:

Rhodes Consulting, Inc.

15. ASSIGNMENT

The Contractor shall not assign this Agreement, in whole or in part, or any right or obligation hereunder, without the prior written approval of the City.

16. INDEPENDENT CONTRACTOR STATUS

(a) The Contractor is engaged as an independent contractor and will be responsible for any federal, state and local taxes and fees applicable to payments hereunder.

(b) The Contractor, its subcontractors and their employees are not employees of the City and are not eligible for any benefits through the City including, without limitation, federal social security, health benefits, workers' compensation, unemployment compensation and retirement benefits.

17. NOTICE

Any notice provided for under this Agreement shall be sufficient if in writing and delivered personally to the following addressee or deposited in the United States Mail, postage prepaid, certified mail, return receipt requested, addressed as follows, or to such other address as the receiving party hereafter shall specify in writing:

If to the City: Matt Brown

Portland Office of Transportation

1120 SW 5th Ave., Room 800

Portland, Oregon 97204

If to the Contractor: Pat LaCrosse

Portland Aerial Transportation, Inc.

1325 NW Flanders Street

Portland, Oregon 97209

18. 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.

19. INTEGRATION

This Agreement contains the entire agreement between the City and the Contractor and supersedes all prior written or oral discussions or agreements.

20. FUNDS

The City certifies that sufficient funds are available and authorized for expenditure to finance the cost of this Agreement.

21. BUSINESS LICENSE

The Contractor as a non-profit corporation is not required to obtain a City of Portland business license as required by PCC 7.06.010. The Contractor shall require all subcontractors to obtain a City of Portland business license prior to beginning of work under this Agreement and shall provide a business license number on all agreements between the Contractor and subcontractors.

22. COMMENCEMENT OF WORK

The Contractor agrees that work being done pursuant to this Agreement will not be commenced until after:

(a) workers' compensation insurance is obtained as outlined in section 13, WORKERS' COMPENSATION INSURANCE; and,

(b) this Agreement is fully executed by the parties and approved by the City Attorney’s Office: and

23. MAINTENANCE OF RECORDS

The Contractor shall maintain records on a current basis to support its billings to the City. The City or its authorized representative shall have the authority to inspect, audit and copy, on reasonable notice and from time to time, any records of the Contractor regarding its billings or its work hereunder. The Contractor shall retain these records for inspection, audit and copying for three (3) years from the date of completion or termination of this Agreement.

24. AUDIT OF PAYMENTS

(a) The City, either directly or through a designated representative, may audit the records of the Contractor at any time during the three (3) year period established by Section 23, MAINTENANCE OF RECORDS.

(b) If an audit discloses that payments to the Contractor under section 3, COMPENSATION, and section 4, BILLING AND PAYMENT PROCEDURE, were in excess of the amount to which the Contractor was entitled, then the Contractor shall repay the amount of the excess to the City.

25. LIABILITY INSURANCE

(a) The Contractor and all subcontractors shall maintain public liability and property damage insurance that protects the Contractor, the subcontractor and the City and its officers, agents and employees from any and all claims, demands, actions and suits for damage to property or personal injury, including death, arising from the Contractor's work under this Agreement. The insurance shall provide coverage for not less than $200,000 for personal injury to each person, $500,000 for each occurrence, and $500,000 for each occurrence involving property damage; or a single limit policy of not less than $500,000 covering all claims per occurrence. The limits of the insurance shall be subject to statutory changes as to maximum limits of liability imposed on municipalities of the State of Oregon during the term of the Agreement. The insurance shall be without prejudice to coverage otherwise existing and shall name as additional insureds the City and its officers, agents and employees. Notwithstanding the naming of additional insureds, the insurance shall protect each insured in - the same manner as though a separate policy had been issued to each, but nothing herein shall operate to increase the insurer's liability as set forth elsewhere in the policy beyond the amount or amounts for which the insurer would have been liable if only one person or interest had been named as insured. The coverage must apply as to claims between insureds on the policy. The insurance shall provide that the insurance shall not terminate or be canceled without thirty (30) days written notice first being given to the City Auditor. If the insurance is canceled or terminated prior to completion of the Agreement, the Contractor and subcontractors shall provide a new policy with the same terms. The Contractor and subcontractors agree to maintain continuous, uninterrupted coverage for the duration of the Agreement. The insurance shall include coverage for any damages or injuries arising out of the use of automobiles or other motor vehicles by the Contractor and subcontractors.

(b) The Contractor and subcontractors 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.

26. OWNERSHIP OF DOCUMENTS

(a) All work the Contractor performs under this Agreement shall be considered work made for hire and shall be the property of the City. The City shall own any and all data, documents, plans, copyrights, specifications, working papers and any other materials the Contractor produces in connection with this Agreement. On completion or termination of the Agreement, the Contractor shall deliver these materials to the Project Manager.

(b) The Contractor may retain for its own use and at its own cost copies of the materials referred to in subsection (a) of this section.

(c) Any use the City makes of the materials referred to in subsection (a) of this section, except for purposes of the work contemplated by this Agreement, shall be at the City's risk.

27. ARBITRATION

(a) Any dispute arising out-of or-in connection with this Agreement, which is not settled by mutual agreement of the Contractor and the City within sixty (60) days of notification in writing by either party, shall be submitted to an arbitrator mutually agreed upon by the parties. In the event the parties cannot agree on the arbitrator, then the arbitrator shall be appointed by the Presiding Judge (Civil) of the Circuit Court of the State of Oregon for the County of Multnomah. The arbitrator shall be selected within thirty (30) days from the expiration of the sixty (60) day period following notification of the dispute. The arbitration, and any litigation arising out of or in connection with this Agreement, shall be conducted in Portland, Oregon, shall be governed by the laws of the State of Oregon, and shall be as speedy as reasonably possible. The applicable arbitration rules for the Multnomah County courts shall apply unless the parties agree in writing to other rules. The arbitrator shall render a decision within forty-five (45) days of tile first meeting with the Contractor and the City. Insofar as the Contractor and the City legally may do so, they agree to be bound by the decision of the arbitrator.

(b) Notwithstanding any dispute under this Agreement, whether before or during arbitration, the Contractor shall continue- to perform its work pending resolution of the dispute, and the City shall make payments as required by the Agreement for undisputed portions of the work.

28. AMENDMENTS

(a) The City and the Contractor may amend this Agreement at any time only by written amendment executed by the City and the Contractor. Unless otherwise provided, any amendment that increases the amount of compensation payable to the Contractor must be approved by ordinance of the City Council. The Project Manager may agree to and execute any other amendment on behalf of the City.

(b) Any change in the Scope of Contractor Services shall be deemed an amendment subject to subsection (a).

29. PROGRESS REPORTS

The Contractor shall provide progress reports to the Project Manager as requested by the Project Manager.

30. NON-WAIVER

The City and the Contractor shall not be deemed to have waived any breach of this Agreement by the other party except by an express waiver in writing. An express written waiver as to one breach shall not be deemed a waiver of any other breach not expressly identified, even though the other breach be of the same nature as that waived.

31. PROHIBITED INTEREST

(a) No City officer or employee during his or her tenure shall have any interest, direct or indirect, in this Agreement or the proceeds thereof.

(b) No City officer or employee who participated in the award of this Agreement shall be employed by the Contractor during the period of the Agreement.

35. PAYMENTS TO VENDORS AND SUBCONTRACTORS

The Contractor shall pay, in a timely fashion, all suppliers, lessors and contractors providing it services, materials or equipment for carrying out its obligations under this Agreement. The Contractor shall not take or fail to take any action in a manner that causes the City or any materials that the Contractor provides hereunder to be subject to any claim or lien of any person without the City's prior written consent.

PORTLAND AERIAL TRANSPORTATION, INC.

By: APPROVED AS TO FORM:

Title:

Tax ID No:

Legal Counsel

CITY OF PORTLAND

By: APPROVED AS TO FORM:

Title:

Date:

City Attorney