CONTRACT FOR TRAFFIC CONTROL SERVICES

CONTRACT FOR TRAFFIC CONTROL SERVICES This Contract for Traffic Control Services (Contract), dated, 2013 is between Clean Water Services (District) and Northwest Traffic Control, Inc. (Contractor). RECITALS 1. District is in need of traffic control services when performing routine maintenance tasks. 2. Contractor represents that Contractor has sufficient experience and expertise to perform the services under this Contract and has submitted a proposal to perform these services. 3. District and Contractor wish to enter into a Contract for Contractor to provide these services. 1. Services to be Provided GENERAL TERMS AND CONDITIONS Contractor shall provide the services described in Exhibit A, Scope of Work and Special Terms and Conditions, attached hereto and incorporated herein. Contractor s services shall be performed to meet the highest standards prevalent in the industry or business for providers of such services in good standing in the same or similar field and community as Contractor (Performance Standard). In performing the services, Contractor shall be an independent contractor and not an employee of District. District shall have the right to verify that Contractor s performance meets the requirements of this Contract but shall not have the right to control the manner of Contractor s or Contractor s subcontractors performance. No provision of this Contract shall be construed to create a partnership, joint venture, employer-employee, landlord-tenant or principal-agent relationship. 2. Cost of Services District shall pay Contractor for Contractor s services as specified in Contractor's cost proposal attached hereto as Exhibit A and incorporated herein. Interest shall not begin to accrue on Contractor s invoices until after the due date for payment set forth herein. In the event of a dispute concerning the amount due under any invoice, District may withhold the disputed amount without incurring interest or other charges pending the outcome of the dispute. District shall have the right to examine Contractor s business records to verify the accuracy of Contractor s billing statements. The right of inspection shall extend to all documents necessary to permit adequate evaluation of the billing data submitted. Page 1

3. Interference with Performance If at any time Contractor believes that District is in any way hindering, delaying or interfering with Contractor s performance, Contractor shall promptly inform District in writing and shall describe in detail the way in which Contractor believes that such hindrance, delay or interference is occurring. Contractor s failure to promptly inform District in writing shall operate as a waiver of Contractor s right to assert claims or defenses based upon the hindrance, delay or interference. The terms of this paragraph shall not apply to District s suspension of the work pursuant to Paragraph 7 herein. 4. Changes in Work Subject to the requirements of this section, District shall have the right to request work outside the scope of this Contract and to cancel a portion of the work at any time. District shall pay Contractor an amount to be agreed upon by the parties for all additional work. District shall pay Contractor a reduced amount to be agreed upon by the parties in the event District cancels work. District shall not be liable for profits lost due to cancelled work. Contractor shall perform no work outside the scope of this Contract until the parties have signed an amendment that describes the work and contains the terms of payment. Contractor shall not be entitled to payment for work outside the scope of this Contract unless the parties signed such an amendment before Contractor performed the work. All work performed in the absence of such an amendment shall be considered within the scope of the Contract. 5. Time of Performance/Duration Time is of the essence in the performance of this Contract. Contractor shall complete all work in accordance with the schedule contained in Exhibit A. The Contract shall begin on the date indicated on page one and shall terminate two years from that date. The Contract may be renewed upon agreement of the parties for up to one additional one-year period. 6. Excusable Delays Neither District nor Contractor shall be responsible for or liable for damages resulting from delays due to causes beyond their reasonable control, including, but not limited to, acts of God, acts or omissions of governmental authorities, strikes, lockouts, acts of the public enemy, wars, blockades or civil disturbances. In the event of such a delay, the completion date for Contractor s services shall be extended for a period equal to the length of the delay. Contractor shall notify District in writing not more than ten days after the occurrence of any event that Contractor believes will result in such a delay. The failure of Contractor to provide such notice shall result in a waiver of Contractor s right to claim that the delay is excusable. Page 2

7. Suspension of Work District may suspend the work at any time by delivering written notice to Contractor. In the event District suspends the work for reasons that are not the fault of Contractor, Contractor shall be allowed an increase in the amount payable to Contractor that is equal to the increase in Contractor s expenses resulting from the suspension. Such expenses must be reasonable, customary and actually incurred. District shall not be liable for profits lost due to suspension of work. 8. Remedies If Contractor does not perform the services or the services fail to meet the Performance Standard contained herein, District may: a. Reduce or withhold payment; b. Require Contractor to perform, at Contractor s expense, additional work necessary to perform the identified scope of work or meet the established Performance Standard; or c. Declare a default, terminate the Contract and seek damages and other relief available herein or under other applicable law. 9. Project Management Each party shall assign a project manager to this Contract. The project managers shall be authorized to act on behalf of their respective employers concerning all matters related to this Contract, except, however, that Contract amendments shall not be effective unless approved pursuant to paragraph 14 of this document. 10. Indemnification To the fullest extent permitted by law, Contractor shall indemnify, hold harmless, reimburse and defend District, District's officers, employees, agents, and representatives from and against all claims, demands, penalties, and causes of action of any kind or character, including the cost of defense thereof, including attorney fees at trial and on appeal, arising out of or resulting from Contractor's performance of the Contract, but only to the extent caused by a breach of this Contract by Contractor or the negligent acts, errors or omissions of Contractor, any subcontractor, or any individual or entity directly or indirectly employed by any of them to perform any of the work described in the Contract or anyone for whose acts any of them may be liable. 11. Insurance Neither Contractor nor any subcontractor shall commence work under this Contract until Contractor has obtained all the insurance required herein and submitted a certificate of insurance to District. Contractor shall maintain the insurance for the duration of this Contract. Review of the insurance by District shall not relieve or decrease the liability of Contractor. The insurance certificate shall provide for thirty days advance written notice to District s Project Manager prior Page 3

to cancellation. District must be listed as an additional insured on any policy satisfying the requirements of items ii and iii below. The following minimum insurance is required: i. Workers compensation in the amount required by Oregon law, and employers liability insurance in the amount of $500,000. ii. iii. Business automobile liability insurance in the amount of $500,000 per occurrence. Commercial general liability in the amount of $500,000 combined single limit per occurrence and a $1,000,000 Annual Aggregate limit. If Contractor s primary Commercial General Liability and Automobile coverages do not meet the minimum limits required above, Contractor shall maintain during the life of this Contract, Excess or Umbrella Liability over the primary policies sufficient to meet the total aggregate limits required by this Contract. 12. Termination District may terminate this Contract without cause at any time upon the delivery of written notice. In the event of such termination, District shall pay Contractor for all work performed in accordance with the requirements of this Contract prior to the date of termination. District shall not be liable for lost profits on uncompleted work or damages as a result of District s termination. The termination of this Contract shall not relieve or release Contractor from any liability to District for damages sustained by District by virtue of any breach of this Contract by Contractor or Contractor s negligence or other conduct, and District may withhold all or any part of any payment due to Contractor upon such termination as a set-off against the amount of any such damages until such time as the exact amount of damages due District from Contractor is determined. In the event of the termination of this Contract for any reason allowed herein or allowed by law, Contractor shall promptly deliver all work in progress to District. District shall not be obligated to pay Contractor s final invoice until District has received the work in progress. 13. Arbitration All disputes arising out of or relating to the project or this Contract shall be subject to arbitration in accordance with the American Arbitration Association rules then in effect. Written notice of demand for arbitration shall be filed with the American Arbitration Association within a reasonable time after the dispute has arisen, but in no event shall be made after the date when institution of legal or equitable proceedings based on such claim would be barred by the applicable contractual provision or statute of limitations. The award rendered by the arbitrators shall be final, and judgment may be entered upon it in accordance with applicable law in any court having jurisdiction thereof. Page 4

In any arbitration proceedings brought under this section or any legal proceedings arising out of or relating to this Contract, the prevailing party shall be entitled to reasonable attorney fees, together with all reasonable investigation, expert and other costs incurred, in addition to any other relief to which any party may otherwise be entitled. Contractor s agreement to arbitrate is not a waiver of its lien rights or bond claim rights otherwise provided by law, which rights are fully reserved. 14. Change Orders, Amendments, Waivers This Contract, all change orders, modifications, amendments and any waiver of any portion of the Contract shall not be effective unless in writing and approved by District s General Manager or the General Manager s designee and, when required by applicable District rules, District s Board of Directors. 15. Compliance With Applicable Laws Contractor shall keep itself fully informed of and comply with all federal, state and local laws, regulations and ordinances applicable to this Contract, as those laws, regulations and ordinances may be adopted or amended from time to time. These laws, regulations and ordinances including, without limitation, the provisions of ORS 279B.220, 279B.225, 279B.230, 279B.235 and 279B.270, are incorporated by reference herein to the extent that they are applicable to the Contract and required by law to be incorporated. Contractor shall pay all taxes, including federal, state, regional, county and city taxes, and taxes of any other governmental entity, applicable to the services performed or materials provided under this Contract. All permits, licenses, and fees necessary to prosecute and complete the work shall be secured and paid for by Contractor unless otherwise specified by District. 16. Third Party Beneficiaries No provision of this Contract shall in any way inure to the benefit of any third person so as to constitute any such person a third party beneficiary of this Contract or of any one or more of the terms of this Contract, or otherwise give rise to any cause of action in any person not a party to this Contract. 17. No Contingent Fees Contractor warrants that Contractor has not employed or retained any company or person, other than a bona fide employee working solely for Contractor, to solicit or secure this Contract, and that Contractor has not paid or agreed to pay any company or person, other than a bona fide employee working solely for Contractor any fee or consideration of any kind, contingent upon or resulting from the award or making of this Contract. In the event Contractor breaches the warranty contained in this paragraph, District shall have the right to deduct from the contract price or otherwise recover the full amount of such fee or consideration. Page 5

18. Waiver of OTCA Rights Contractor hereby waives all indemnity rights Contractor may have under the Oregon Tort Claims Act which arise as a result of an agency or alleged agency relationship between the parties. 19. Assignment Contractor shall not assign Contractor s rights or duties pursuant to this Contract without first obtaining District s written consent. 20. Interpretation of Contract This Contract shall not be construed for or against any party by reason of the authorship or alleged authorship of any provision. The paragraph headings contained in this Contract are for ease of reference only and shall not be used in construing or interpreting this Contract. 21. Severability/Survival If any of the provisions contained in this Contract are held illegal, invalid or unenforceable, the enforceability of the remaining provisions shall not be impaired. All provisions concerning the limitation of liability, indemnity and conflicts of interest shall survive the termination of this Contract for any cause. 22.Choice of Law/Venue This Contract and all rights, obligations and disputes arising out of the Contract shall be governed by Oregon law. All disputes and litigation arising out of this Contract shall be decided by the state courts in Oregon. Venue for all disputes and litigation shall be in Washington County, Oregon. 23. Integration This document constitutes the entire agreement between the parties on the subject matter hereof and supersedes all prior or contemporaneous written or oral understandings, representations or communications of every kind on the subject. No course of dealing between the parties and no usage of trade shall be relevant to supplement any term used in this Contract. Acceptance or acquiescence in a course of performance rendered under this Contract shall not be relevant to determine the meaning of this Contract and no waiver by a party of any right under this Contract shall prejudice the waiving party s exercise of the right in the future. 24. Warranty Contractor warrants that the traffic control services it provides pursuant to this Contract will be performed by qualified personnel on a reasonable best efforts basis and to the satisfaction of District. Contractor shall be liable for all damages incurred by District as a result of Contractor s negligence in performing traffic control services. Page 6

25. No Personal Liability of Public Officials In carrying out any of the provisions hereof, and in exercising any authority granted by the Contract, there will be no personal liability upon any public official. NORTHWEST TRAFFIC CONTROL, INC. CLEAN WATER SERVICES By: Print Name & Title: By: General Manager or Designee APPROVED AS TO FORM District Counsel Page 7

EXHIBIT A SCOPE OF WORK AND SPECIAL TERMS AND CONDITIONS TRAFFIC CONTROL SERVICES I. Scope of Work A. Definitions 1. Traffic Control Services shall refer to flagging services provided by the Contractor in accordance with the State of Oregon Temporary Traffic Control Handbook, using work crews, trucks and signs, while District crews perform maintenance work on roads within District s service area. 2. Flagging Crew shall refer to the Contractor s employees who are qualified to provide Traffic Control Services. B. Scope of Work 1. District shall enter into a Contract for Traffic Control Services with Contractor and a back-up contract with D&H Flagging, Inc. If Contractor is unable to provide Traffic Control Services within the period called for in paragraph B(3) herein or the Contract is terminated prior to its scheduled termination date and District elects not to solicit new bids, District shall purchase traffic control services from D&H Flagging, Inc. under the back-up contract. 2. Contractor shall provide one, two and three-person Flagging Crews, in accordance with District s instructions to provide Traffic Control Services. 3. Contractor shall provide Traffic Control Services on 12-hours notice. 4. Contractor s crews shall use two-way radios at all times for communication between crew members when providing Traffic Control Services. 5. Each of Contractor s crew members shall have a current Flagger s Certification Card issued by the State of Oregon. 6. Contractor shall perform all Traffic Control Services in accordance with all applicable government rules and regulations. Contractor shall supply District with a printed Traffic Control Plan at the job site for the specific situation. 7. Contractor shall provide all necessary signage for Traffic Control Services, including but not limited to traffic control devices outlined in the current ODOT Traffic Control Handbook. (District will provided a lighted sign board in the event one is required.) Page 8

C. Additional Contractor Requirements 1. Provide sufficient qualified staff, office and field equipment, including transportation and supplies to fulfill Contractor's duties under this Contract. 2. Maintain records appropriate to support the invoicing and recording requirements set forth in paragraph II.C of the Special Terms and Conditions section of this exhibit. 3. If requested by District to review Contractor s performance or other administrative details, Contractor s Project Manager shall attend a quarterly status meeting at the District s Field Operations Complex, located at 2025 SW Merlo Court, Beaverton, Oregon 97005 or via conference call. 4. If a member of Contractor s Flagging Crew fails to adhere to safety and other guidelines stated herein, District may ask the flagger to leave the work site and Contractor will be notified. Contractor shall be responsible for providing a replacement flagger within two hours of notification by the District. 5. Contractor s flaggers shall be able to: a. Receive and communicate specific instructions clearly, firmly and courteously; b. Move and maneuver quickly to avoid danger from errant vehicles; c. Control signaling devices (such as paddles and flags) in order to provide clear and positive guidance to drivers approaching a construction zone; d. Understand and apply safe traffic control practices, sometimes in stressful or emergency situations; and e. Recognize dangerous traffic situations and warn workers in sufficient time to avoid injury. 6. Contractor s Flagging Crew must be dressed in a neat and presentable manner. Clothing is to cover the complete body except the head, neck and arms. Shorts or Tank tops are not allowed. A T-shirt must be worn underneath a safety vest. All Flagging Crew members shall wear a fluorescent yellow-green, orange, yellow or other OSHA approved safety vest. A hardhat must also be worn while providing Traffic Control Services. No music radios, CD, MP3 players or any other sound device, no umbrellas and no chairs will be allowed at the flagging site. 7. Contractor s Flagging Crew must have their own, or company-supplied, transportation which shall be available all day should there be a need to change job locations. Page 9

II. Special Terms and Conditions A. Payment Terms 1. District shall pay Contractor at the rate of $24.75 per hour for a one-person flagging crew, $42.95 per hour for a two-person flagging crew, and $58.90 per hour for a three-person flagging crew. Contractor s rates shall remain fixed for the duration of this Contract except as otherwise provided in parapgraph II.F below. Contractor s crews shall not work overtime unless Contractor has previously obtained District's approval. All overtime shall be governed by the provisions of ORS 279B.235. 2. Contractor s hourly rates stated in paragraph II.B.1 herein shall be Contractor s sole basis for compensation under this Contract. Contractor shall impose no additional charges, including, but not limited to, charges for the use of signs, mileage, trucks or other equipment used in performing Traffic Control Services. District shall not pay Contractor for travel time, but shall pay Contractor at the rates contained in paragraph II.B.1 herein for equipment set-up and take-down time spent at the work site. Contractor s time shall be rounded to the nearest fifteen (15) minute increment. District shall pay Contractor for a minimum of four (4) hours each time District utilizes Contractor s services. 3. District s total payment to Contractor shall not exceed $80,000 per year. B. Invoicing and Reporting Contractor shall invoice District at least monthly and may invoice every two weeks if desired. Each invoice shall include an MSExcel-compatible spreadsheet containing detailed work site information listed below and be emailed to accountspayable@cleanwaterservices.org. Contractor s invoice shall include the following general information: 1. Time period during which the services were performed; 2. Total cost of services provided during the time period invoiced; and 3. The total costs invoiced, received, and remaining to date for the Contract term. Page 10

The following information related to each work site shall also be included: 1. Location of the work site; 2. Date and time spent at the work site; 3. Name of District staff who requested the work; 4. Size of the crew; 5. Applicable hourly rate; 6. Overtime hours and rate paid, if applicable; 7. Cost for services provided at each work site; and 8. District Program number written on the daily ticket by District staff. C. Prevailing Wages No work performed under this Contract will be subject to State of Oregon or Federal prevailing wage requirements. D. Compliance with all Laws Contractor agrees that it shall abide by the latest version of the Temporary Traffic Control Handbook published by the Oregon Department of Transportation and all other rules governing traffic control as applicable. E. Adjustment of Cost of Services Contractor may adjust prices, subject to the following conditions: 1. If the Contract is renewed, Contractor may increase Contractor's hourly billing rates by an amount that is equal to the percentage change in the Consumer Price Index, Urban Wage Earners and Clerical Workers, U.S. City Average, during the previous Contract year. No increases in hourly rates shall be effective until Contractor provides District with the revised pricing and evidence supporting the calculation of the increased prices based on the formula set forth herein and the parties enter into an Amendment. 2. Price changes shall occur only at the beginning of the renewal period. 3. Contractor shall notify District of proposed price changes at least two (2) months prior to the end of the current Contract term. Page 11