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Jail Expansion - Remodel Project
Deschutes County Board of Commissioners 1300 NW Wall St., Suite 200, Bend, OR 97701-1960 (541) 388-6570 - Fax (541) 385-3202 - www.deschutes.org AGENDA REQUEST & STAFF REPORT For Board Business Meeting of May 14, 2008 DATE: May 5, 2008 FROM: Susan Ross Property and Facilities Department 383-6713 TITLE OF AGENDA ITEM: Consideration of Board signature for Heery International, Inc. contract 2008-170, which will provide Owner's Representative/Construction Management services for the Jail Expansion Remodel Project in Bend, Oregon. PUBLIC HEARING ON THIS DATE? NO BACKGROUND AND POLICY IMPLICATIONS: Deschutes County conducted solicitation for an owner's representative/construction manager for the Jail Expansion Project. A selection committee made up of Deschutes County representatives was formed. Committee members included Dave Kanner, County Administrator; Erik Kropp, Deputy County Administrator; Susan Ross, Director Property and Facilities Department; Larry Blanton, Sheriff; Ruth Jenkins, Jail Captain; Scott Steele, Principal Architect; Mike Daly, County Commissioner; and Dennis R. Luke, County Commissioner. After review of proposals and personal interviews, the selection committee recommended that Heery International, Inc. be selected as the Owner's Representative/Construction Manager. Owner's representative services for the Jail Expansion Project will occur in two distinct phases: preconstruction services and construction services. Payment for the construction phase will occur only if Owner actually implements the construction phase of the Jail Expansion Project. Total contract amount is $499,833.00. A full scope of services is contained in Exhibit 1 of the contract. FISCAL IMPLICATIONS: Profession services for the Jail Expansion Project have been budgeted in fund 456, the fund specifically established to account for all activity related to this project. RECOMMENDATION & ACTION REQUESTED: Board approval and signature of County Services Contract #2008-170. ATTENDANCE: Susan Ross, Director, Property and Facilities Department DISTRIBUTION OF DOCUMENTS: Return all documents to Property and Facilities Department. DESCHUTES COUNTY DOCUMENT SUMMARY (NOTE: This form is required to be submitted with ALL contracts and other agreements, regardless of whether the document is to be on a Board agenda or can be signed by the County Administrator or Department Director. If the document is to be on a Board agenda, the Agenda Request Form is also required. If this form is not included with the document, the document will be returned to the Department. Please submit documents to the Board Secretary for tracking purposes, and not directly to Legal Counsel, the County Administrator or the Commissioners. In addition to submitting this form with your documents, please submit this form electronically to the Board Secretary.) Please complete all sections above the Official Review line. Date: 'April 21, 2008 Contact Person: Susan Ross, Director Contractor/Supplier/Consultant Name: Department: Property and Facilities Phone #: Heery International, Inc. 383-6713 Goods and/or Services: Heery International Inc. will provide services as Owner's Representative/Construction Manager for the Deschutes County Jail Expansion and Remodel Project in Bend, Oregon. Background & History: Deschutes County conducted solicitation for an owner's representative/construction manager for the Jail Expansion Project. After review of proposals and personal interviews, the section committee recommended that Heery International, Inc. be selected as the Owner's Representative/Construction Manager. Owner's Representative services for the Jail Expansion Project will occur in two distinct phases: preconstruction services and construction services. Payment for the construction phase will occur only if Owner actually implements the construction phase of the Jail Expansion Project. Preconstruction contract amount is $77,784. 00. Construction phase contract amount is $421,898.00, for a total contract of $499,833.00. Agreement Starting Date: April 18, 2008 Ending Date: Annual Value or Total Payment: X Insurance Certificate Received (check box) Insurance Expiration Date: Check all that apply: X RFP, Solicitation or Bid Process ❑ Informal quotes (<$150K) ❑ Exempt from RFP, Solicitation or Bid Process (specify — see DCC §2.37) March 1, 2009 December 31, 2011 Funding Source: (Included in current budget? X Yes ❑ No If No, has budget amendment been submitted? ❑ Yes ❑ No Departmental Contact: Susan Ross Phone #: Title: Director, Property and Facilities Department Department Director Approval: Signature 383-6713 Date 1 of 2 5/6/2008 Distribution of Document: Return all documents to Property and Facilities Department. Official Review: County Signature Required (check one): X BOCC ❑ Department Director (if <$25K) ❑ Administrator (if >$25K but <$150K; if >$150K, BOCC Order No. Legal Review Document Number 2008-170 2 of 2 Date 5/6/2008 LEGAL COUNSEL For Recording Stamp Only DESCHUTES COUNTY SERVICES CONTRACT CONTRACT NO. 2008-170 This Contract is between DESCHUTES COUNTY (County) and HEERY INTERNATIONAL INCORPORATED (Contractor). The parties agree as follows: Effective Date and Termination Date. The effective date of this Contract shall be April 18, 2008, or the date on which each party has signed this Contract, whichever is later. Unless extended or terminated earlier in accordance with its terms, this Contract shall terminate when County accepts Contractor's completed performance or on December 31, 2010, whichever date occurs last. Contract termination shall not extinguish or prejudice County's right to enforce this Contract with respect to any default by Contractor that has not been cured. Statement of Work. Contractor shall perform the work described in Exhibit 1. Payment for Work. County agrees to pay Contractor in accordance with Exhibit 1. Contract Documents. This Contract includes Pages 1-9 and Exhibits 1, 2, 3, 4, 5 and 6. CONTRACTOR DATA AND SIGNATURE Contractor Address: 319 Southwest Washington Street, Suite 1100, Portland OR 97204 Federal Tax ID# or Social Security #580827945: Is Contractor a nonresident alien? ❑Yes X No Business Designation (check one): ❑ Sole Proprietorship X Corporation -for profit ❑ Corporation -non-profit ❑ Partnership ❑ Other, describe A Federal tax ID number or Social Security number is required to be provided by the Contractor and shall be used for the administration of state, federal and local tax laws. Payment information shall be reported to the Internal Revenue Service under the name and Federal tax ID number or, if none, the Social Security number provided above. I have read this Contract including the attached Exhibits. I understand this Contract and agree to be bound by its terms. NOTE: Contractor shall also sign Exhibits 3 and 4 and, if applicable, Exhibit 6. Signature Bill Heitz President Title Name (please print) Date DESCHUTES COUNTY SIGNATURE DATED this day of 2008 for the Deschutes County Board of commissioners. ATTEST: DENNIS R. LUKE, Chair Recording Secretary TAMMY (BANEY) MELTON, Vice Chair MICHAEL M. DALY, Commissioner Page 1 of 9 — Personal Services Contract No. 2008-170 Heery International for Jail Project OG For Recording Stamp Only DESCHUTES COUNTY SERVICES CONTRACT CONTRACT NO. 2008-170 This Contract is between DESCHUTES COUNTY (County) and HEERY INTERNATIONAL INCORPORATED (Contractor). The parties agree as follows: Effective Date and Termination Date. The effective date of this Contract shall be April 18, 2008, or the date on which each party has signed this Contract, whichever is later. Unless extended or terminated earlier in accordance with its terms, this Contract shall terminate when County accepts Contractor's completed performance or on December 31, 2010, whichever date occurs last. Contract termination shall not extinguish or prejudice County's right to enforce this Contract with respect to any default by Contractor that has not been cured. Statement of Work. Contractor shall perform the work described in Exhibit 1. Payment for Work. County agrees to pay Contractor in accordance with Exhibit 1. Contract Documents. This Contract includes Pages 1-9 and Exhibits 1, 2, 3, 4, 5 and 6. CONTRACTOR DATA AND SIGNATURE Contractor Address: 319 Southwest Washington Street, Suite 1100, Portland OR 97204 Federal Tax ID# or Social Security #580827945: Is Contractor a nonresident alien? DYes X No Business Designation (check one): 0 Sole Proprietorship X Corporation -for profit 0 Corporation -non-profit 0 Partnership 0 Other, describe A Federal tax ID number or Social Security number is required to be provided by the Contractor and shall be used for the administration of state, federal and local tax laws. Payment information shall be reported to the Internal Revenue Service under the name and Federal tax ID number or, if none, the Social Security number provided above. 1 have read this Contract including the attached Exhibits. I understand this Contract and agree to be bound by its terms. NOTE: Contractor shall also sign Exhibits 3 and 4 and, if applicable, Exhibit 6. President Sign tura1 Title Bill Heights e 66 Date Name (please print) DESCHUTES COUNTY SIGNATURE DATED this day of 2008 for the Deschutes County Board of commissioners. ATTEST: DENNIS R. LUKE, Chair Recording Secretary TAMMY (BANEY) MELTON, Vice Chair MICHAEL M. DALY, Commissioner Page 1 of 9 — Personal Services Contract No. 2008-170 Heery lnt'I for Jail Project STANDARD TERMS AND CONDITIONS 1. Time is of the Essence. Contractor agrees that time is of the essence in the performance of this Contract. 2. Compensation. Payment for all work performed under this Contract shall be made as set forth in Exhibit 1. a. Payments shall be made to Contractor following County's review and approval of billings submitted by Contractor. Contractor shall also submit copies of other billings for work performed under this Contract when such bills are to be paid by other parties. b. These other billings are subject to the maximum compensation amount of this contract. c. Contractor shall not submit billings for, and County shall not pay, any amount in excess of the maximum compensation amount of this Contract, including any reimbursable expenses, (See Exhibit 5). 1) If the maximum compensation amount is increased by amendment to this Contract, the amendment shall be fully executed before Contractor performs work subject to the amendment. 2) No payment shall be made for any services performed before the beginning date or after the expiration date of this contract. d. This Contract shall not be amended after the expiration date. e. Contractor shall submit monthly invoices for work performed. The invoices shall describe all work performed with particularity and by whom it was performed and shall itemize and explain all expenses for which reimbursement is claimed. f. All invoices submitted by Contractor shall describe all work performed with particularity and by whom it was performed and shall itemize and explain all expenses for which reimbursement is claimed. g. The invoices also shall include the total amount invoiced to date by Contractor prior to the current invoice. 3. Delegation, Subcontracts and Assignment. Contractor shall not delegate or subcontract any of the work required by this Contract or assign or transfer any of its interest in this Contract, without the prior written consent of County that shall be attached to the original contract. a. Any delegation, subcontract, assignment, or transfer without prior written consent of County shall constitute a material breach of this contract. b. Any such assignment or transfer, if approved, is subject to such conditions and provisions as the County may deem necessary. c. No approval by the County of any assignment or transfer of interest shall be deemed to create any obligation of the County to increase rates of payment or maximum Contract consideration. d. Prior written approval shall not be required for the purchase by the Contractor of articles, supplies and services which are incidental to the provision of services under this Contract that are necessary for the performance of the work. e. Any subcontracts that the County may authorize shall contain all requirements of this contract, and the Contractor shall be responsible for the performance of the subcontractor. 4. No Third Party Beneficiaries. a. County and Contractor are the only parties to this Contract and are the only parties entitled to enforce its terms. b. Nothing in this Contract gives or provides any benefit or right, whether directly, indirectly, or otherwise, to third persons unless such third persons are individually identified by name in this Contract and expressly described as intended beneficiaries of this Contract. 5. Successors in Interest. The provisions of this Contract shall be binding upon and inure to the benefit of the parties and their successors and approved assigns, if any. 6. Early Termination. This Contract may be terminated as follows: a. Mutual Consent. County and Contractor, by mutual written agreement, may terminate this Contract at any time. b. Party's Convenience. County or Contractor may terminate this Contract for any reason upon 30 calendar days written notice to the other party. c. For Cause. County may also terminate this Contract effective upon delivery of written notice to the Contractor, or at such later date as may be established by the County, under any of the following conditions: 1) If funding from state or other sources is not obtained and continued at levels sufficient to allow for the purchase of the indicated quantity of services as required in this contract. 2) This Contract may be modified to accommodate the change in available funds. Page 2 of 9 — Personal Services Contract No. 2008-170 Heery International for Jail Project 3) If state laws, 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 Contract or are no longer eligible for the funding proposed for payments authorized by this contract. 4) In the event sufficient funds shall not be appropriated for the payment of consideration required to be paid under this contract, and if County has no funds legally available for consideration from other sources. 5) If any license or certificate required by law or regulation to be held by the Contractor to provide the services required by this Contract is for any reason denied, revoked, suspended, not renewed or changed in such a way that the Contractor no longer meets requirements for such license or certificate. d. Contractor Default or Breach. The County, by written notice to the Contractor, may immediately terminate the whole or any part of this Contract under any of the following conditions: 1) If the Contractor fails to provide services called for by this Contract within the time specified or any extension thereof. 2) If the Contractor fails to perform any of the other requirements of this Contract or so fails to pursue the work so as to endanger performance of this Contract in accordance with its terms, and after receipt of written notice from the County specifying such failure, the Contractor fails to correct such failure within 10 calendar days or such other period as the County may authorize. 3) Contractor institutes or has instituted against it insolvency, receivership or bankruptcy proceedings, makes an assignment for the benefit of creditors, or ceases doing business on a regular basis. e. County Default or Breach. 1) Contractor may terminate this Contract in the event of a breach of this Contract by the County. Prior to such termination, the Contractor shall give to the County written notice of the breach and intent to terminate. 2) If the County has not entirely cured the breach within 10 calendar days of the date of the notice, then the Contractor may terminate this Contract at any time thereafter by giving notice of termination. 7. Payment on Early Termination. Upon termination pursuant to paragraph 6, payment shall be made as follows: a. If terminated under subparagraphs 6 a. through c. of this Contract, the County shall pay Contractor for work performed prior to the termination date if such work was performed in accordance with the Contract. b. County shall not, however, pay Contractor for any obligations or liabilities incurred by Contractor after Contractor receives written notice of termination. c. If this Contract is terminated under subparagraph 6 d. of this Contract, County obligations shall be limited to payment for services provided in accordance with this Contract prior to the date of termination, less any damages suffered by the County. c. If terminated under subparagraph 6 e of this Contract by the Contractor due to a breach by the County, then the County shall pay the Contractor for work performed prior to the termination date if such work was performed in accordance with the Contract: 1) with respect to services compensable on an hourly basis, for unpaid invoices, hours worked within any limits set forth in this Contract but not yet billed, authorized expenses incurred and interest within the limits set forth under ORS 293.462, and 2) with respect to deliverable -based Work, the sum designated for completing the deliverable multiplied by the percentage of Work completed and accepted by County, Tess previous amounts paid and any claim(s) that County has against Contractor. In no event shall County be liable to Contractor for any expenses related to termination of this Contract or for anticipated profits. 8. Remedies. In the event of breach of this Contract the parties shall have the following remedies: a. Termination under subparagraphs 6 a. through c. of this Contract shall be without prejudice to any obligations or liabilities of either party already reasonably incurred prior to such termination. 1) Contractor may not incur obligations or liabilities after Contractor receives written notice of termination. 2) Additionally, neither party shall be liable for any indirect, incidental, consequential or special damages under this Contract or for any damages of any sort arising solely from the termination of this Contract in accordance with its terms. b. If terminated under subparagraph 6 d. of this Contract by the County due to a breach by the Contractor, County may pursue any remedies available at law or in equity. 1) Such remedies may include, but are not limited to, termination of this contract, return of all or a portion of this Contract amount, payment of interest earned on this Contract amount, and declaration of ineligibility for the receipt of future contract awards. 2) Additionally, County may complete the work either itself, by agreement with another Contractor, or by a combination thereof. If the cost of completing the work exceeds the remaining unpaid balance of the total Page 3 of 9 — Personal Services Contract No. 2008-170 Heery International for Jail Project compensation provided under this Contract, then the Contractor shall pay to the County the amount of the reasonable excess. c. In addition to the remedies in paragraphs 6 through 8 of this Contract for a breach by the Contractor, the County also shall be entitled to any other equitable and legal remedies that are provided by law. d. If previous amounts paid to Contractor exceed the amount due to Contractor under this Contract, Contractor shall repay any excess to County upon demand. e. If the County breaches this Contract, Contractor's sole monetary remedy shall be 1) with respect to services compensable on an hourly basis, a claim for unpaid invoices, hours worked within any limits set forth in this Contract but not yet billed, authorized expenses incurred and interest within the limits set forth under ORS 293.462, and 2) with respect to deliverable -based Work, a claim for the sum designated for completing the deliverable multiplied by the percentage of Work completed and accepted by County, Tess previous amounts paid and any claim(s) that County has against Contractor. In no event shall County be liable to Contractor for any expenses related to termination of this Contract or for anticipated profits. f. Neither County nor Contractor shall be held responsible for delay or default caused by fire, civil unrest, labor unrest, riot, acts of God, or war where such cause was beyond reasonable control of County or Contractor, respectively; however, Contractor shall make all reasonable efforts to remove or eliminate such a cause of delay or default and shall, upon the cessation of the cause, diligently pursue performance of its obligations under this Contract. g. For any delay in performance as a result of the events described in subparagraph f., Contractor shall be entitled to additional reasonable time for performance that shall be set forth in an amendment to this Contract. h. The passage of this Contract expiration date shall not extinguish or prejudice the County's or Contractor's right to enforce this Contract with respect to any default or defect in performance that has not been cured. i. County's remedies are cumulative to the extent the remedies are not inconsistent, and County may pursue any remedy or remedies singly, collectively, successively or in any order whatsoever. 9. Contractor's Tender upon Termination. Upon receiving a notice of termination of this Contract, Contractor shall immediately cease all activities under this Contract unless County expressly directs otherwise in such notice of termination. a. Upon termination of this Contract, Contractor shall deliver to County all documents, information, works -in -progress and other property that are or would be deliverables had this Contract been completed. b. Upon County's request, Contractor shall surrender to anyone County designates, all documents, research, objects or other tangible things needed to complete the work. 10. Work Standard. a. Contractor shall be solely responsible for and shall have control over the means, methods, techniques, sequences and procedures of performing the work, subject to the plans and specifications under this Contract and shall be solely responsible for the errors and omissions of its employees, subcontractors and agents. b. For goods and services to be provided under this contract, Contractor agrees to: 1) perform the work in a good, workmanlike, and timely manner using the schedule, materials, plans and specifications approved by County; 2) comply with all applicable legal requirements; 3) comply with all programs, directives, and instructions of County relating to safety, storage of equipment or materials; 4) take all precautions necessary to protect the safety of all persons at or near County or Contractor's facilities, including employees of Contractor, County and any other contractors or subcontractors and to protect the work and all other property against damage. 11. Drugs and Alcohol. Contractor shall adhere to and enforce a zero tolerance policy for the use of alcohol and the unlawful selling, possession or use of drugs while performing work under this Contract. 12. Insurance. Contractor shall provide insurance in accordance with Exhibit 2 attached hereto and incorporated by reference herein. 13. Expense Reimbursement. If the consideration under this Contract provides for the reimbursement of Contractor for expenses, in addition to Exhibit 5, Exhibit 1 shall state that Contractor is or is not entitled to reimbursement for such expenses. Page 4 of 9 — Personal Services Contract No. 2008-170 Heery International for Jail Project a. County shall only reimburse Contractor for expenses reasonably and necessarily incurred in the performance of this contract. b. Expenses reimbursed shall be at the actual cost incurred; including any taxes paid, and shall not include any mark-up unless the mark-up on expenses is specifically agreed to in this Contract. c. The cost of any subcontracted work approved in this Contract shall not be marked up. d. Contractor shall not bill County for any time expended to complete the documents necessary for reimbursement of expenses or for payment under this contract. e. The maximum amounts for certain reimbursable expenses are set forth in Exhibit "5," attached hereto and by reference incorporated herein. 14. Criminal Background Investigations. Contractor understands that Contractor is subject to periodic criminal background investigations by County and, if such investigations disclose criminal activity not disclosed by Contractor, such non -disclosure shall constitute a material breach of this Contract and County may terminate this Contract effective upon delivery of written notice to the Contractor, or at such later date as may be established by the County. 15. Confidentiality. Contractor shall maintain confidentiality of information obtained pursuant to this Contract as follows: a. Contractor shall not use, release or disclose any information concerning any employee, client, applicant or person doing business with the County for any purpose not directly connected with the administration of County's or the Contractor's responsibilities under this Contract except upon written consent of the County, and if applicable, the employee, client, applicant or person. b. The Contractor shall direct its agents, employees, officers and subcontractors with access to County and Contractor records understand and comply with this confidentiality provision. c. Contractor shall treat all information as to personal facts and circumstances obtained on Medicaid eligible individuals as privileged communication, shall hold such information confidential, and shall not disclose such information without the written consent of the individual, his or her attorney, the responsible parent of a minor child, or the child's guardian, except as required by other terms of this Contract. d. Nothing prohibits the disclosure of information in summaries, statistical information, or other form that does not identify particular individuals. e. Personally identifiable health information about applicants and Medicaid recipients will be subject to the transaction, security and privacy provisions of the Health Insurance Portability and Accountability Act ("HIPAA"). f. Contractor shall cooperate with County in the adoption of policies and procedures for maintaining the privacy and security of records and for conducting transactions pursuant to HIPAA requirements. g. This Contract may be amended in writing in the future to incorporate additional requirements related to compliance with HIPAA. h. If Contractor receives or transmits protected health information, Contractor shall enter into a Business Associate Agreement with County. 16. Reports. Contractor shall provide County with periodic reports at the frequency and with the information prescribed by County. Further, at any time, County has the right to demand adequate assurances that the services provided by Contractor shall be in accordance with the contract. Such assurances provided by Contractor shall be supported by documentation from third parties. 17. Access to Records. Contractor shall maintain fiscal records and all other records pertinent to this Contract. a. All fiscal records shall be maintained pursuant to generally accepted accounting standards, and other records shall be maintained to the extent necessary to clearly reflect actions taken. 1) All records shall be retained and kept accessible for at least three years following the final payment made under this Contract or all pending matters are closed, which ever is later. 2) If an audit, litigation or other action involving this Contract is started before the end of the three year period, the records shall be retained until all issues arising out of the action are resolved or until the end of the three year period, whichever is later. b. County and its authorized representatives shall have the right to direct access to all of Contractor's books, documents, papers and records related to this Contract for the purpose of conducting audits and examinations and making copies, excerpts and transcripts. 1) These records also include licensed software and any records in electronic form, including but not limited to computer hard drives, tape backups and other such storage devices. County shall reimburse Contractor for Contractor's cost of preparing copies. 2) At Contractor's expense, the County, the Secretary of State's Office of the State of Oregon, the Federal Government, and their duly authorized representatives, shall have license to enter upon Contractor's premises Page 5 of 9 — Personal Services Contract No. 2008-170 Heery International for Jail Project to access and inspect the books, documents, papers, computer software, electronic files and any other records of the Contractor which are directly pertinent to this Contract for the purpose of making audits, examinations, excerpts, copies and transcriptions. 3) If Contractor's dwelling is Contractor's place of business, Contractor may, at Contractor's expense, make the above records available at a location acceptable to the County. 18. Ownership of Work. All work of Contractor that results from this Contract (the "Work Product") is the exclusive property of County. a. County and Contractor intend that such Work Product be deemed "work made for hire" of which County shall be deemed author. b. If, for any reason, the Work Product is not deemed "work made for hire," Contractor hereby irrevocably assigns to County all of its right, title, and interest in and to any and all of the Work Product, whether arising from copyright, patent, trademark, trade secret, or any other state or federal intellectual property law or doctrine. c. Contractor shall execute such further documents and instruments as County may reasonably request in order to fully vest such rights in County. d. Contractor forever waives any and all rights relating to Work Product, 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. e. County shall have no rights in any pre-existing work product of Contractor provided to County by Contractor in the performance of this Contract except to copy, use and re -use any such work product for County use only. f. If this Contract is terminated prior to completion, and the County is not in default, County, in addition to any other rights provided by this Contract, may require the Contractor to transfer and deliver all partially completed work products, reports or documentation that the Contractor has specifically developed or specifically acquired for the performance of this Contract. g. In the event that Work Product is deemed Contractor Intellectual Property, Contractor hereby grants to Agency an irrevocable, non-exclusive, perpetual, royalty -free license to use, reproduce, prepare derivative works based upon, distribute copies of, perform and display the Contractor Intellectual Property, and to authorize others to do the same on County's behalf. h. In the event that Work Product is Third Party Intellectual Property, Contractor shall secure on the County's behalf and in the name of the County, an irrevocable, non-exclusive, perpetual, royalty -free license to use, reproduce, prepare derivative works based upon, distribute copies of, perform and display the Third Party Intellectual Property, and to authorize others to do the same on County's behalf. 19. Materials. At all times, Contractor shall make reasonable efforts to use recycled materials in the performance work required under this contract. 20. Compliance with provisions, requirements of funding source and Federal and State laws, statutes, rules, regulations, executive orders and policies. Debt Limitation. This Contract is expressly subject to the debt limitation of Oregon counties set forth in Article XI, Section 10, of the Oregon Constitution, and is contingent upon funds being appropriated therefore. a. Any provisions herein, which would conflict with law, are deemed inoperative to that extent. b. Contractor shall comply with all federal, state and local laws, regulations, executive orders and ordinances applicable to the Contract. c. Without limiting the generality of the foregoing, Contractor expressly agrees to comply with the following laws, regulations and executive orders to the extent they are applicable to the Contract: 1) Titles VI and VII of the Civil Rights Act of 1964, as amended; 2) Sections 503 and 504 of the Rehabilitation Act of 1973, as amended; 3) the Americans with Disabilities Act of 1990, as amended and ORS 659A.112 through 659A.139; 4) Executive Order 11246, as amended; 5) the Health Insurance Portability and Accountability Act of 1996; 6) the Age Discrimination in Employment Act of 1967, as amended, and the Age Discrimination Act of 1975, as amended; 7) the Vietnam Era Veterans' Readjustment Assistance Act of 1974, as amended; 8) ORS Chapter 659A, as amended; 9) all regulations and administrative rules established pursuant to the foregoing laws; and 10) all other applicable requirements of federal and state civil rights and rehabilitation statutes, rules and regulations. Page 6 of 9 — Personal Services Contract No. 2008-170 Heery International for Jail Project d. The above listed laws, regulations and executive orders and all regulations and administrative rules established pursuant to those laws are incorporated by reference herein to the extent that they are applicable to the Contract and required by law to be so incorporated. 21. Constraints. Pursuant to the requirements of ORS 279C.505 through 279C.530 and Article XI, Section 10, of the Oregon Constitution, the following terms and conditions are made a part of this contract. a. Contractor shall: 1) Make payments promptly, as due, to all persons supplying to Contractor labor or materials for the performance of the work provided for in this contract. 2) Pay all contributions or amounts due the Industrial Accident Fund from such Contractor or subcontractor incurred in the performance of this contract. 3) Not permit any lien or claim to be filed or prosecuted against the County on account of any labor or material furnished. 4) Pay to the Department of Revenue all sums withheld from employees pursuant to ORS 316.167. 5) Be responsible for all federal or state taxes applicable to compensation or payments paid to Contractor under this Contract and, unless Contractor is subject to backup withholding, County will not withhold from such compensation or payments any amount(s) to cover Contractor's federal or state tax obligations. Contractor is not eligible for any social security, unemployment insurance or workers' compensation benefits from compensation or payments paid to Contractor under this Contract, except as a self-employed individual. b. If Contractor fails, neglects or refuses to make prompt payment of any claim for labor or services furnished to Contractor or a subcontractor by any person in connection with this Contract as such claim becomes due, the proper officer or officers representing the County may pay such claim to the person furnishing the labor or services and charge the amount of the payment against funds due or to become due Contractor by reason of this Contract. c. Contractor's Employees. 1) Employees of Contractor may not be employed for more than 10 hours in any one day, or 40 hours in any one week, except in cases of necessity, emergency or when the public policy absolutely requires it, and in such cases (except for personal services designated under ORS 279A.055) the employee shall be paid at least time and a half pay: a) For all overtime in excess of eight hours in any one day or 40 hours in any one week when the work week is five consecutive days, Monday through Friday; or b) For all overtime in excess of 10 hours in any one day or 40 hours in any one week when the work week is four consecutive days , Monday through Friday; and c) For all work performed on Saturday and on any legal holiday specified in ORS 279C.540. 2) In the case of contracts for personal services described in ORS 279A.055, the employee shall be paid at least time and a half for all overtime worked in excess of 40 hours in any one week, except for individuals under personal services contracts who are excluded under ORS 653.010 to 653.261 or under 29. USC 201 to 209 from receiving overtime. 3) Except for contracts subject to ORS 2796.235(4), contracts for services require that persons employed under such contracts shall receive at least time and a half pay for work performed on the legal holidays specified in a collective bargaining agreement or in ORS 2796.020 and for all time worked in excess of 10 hours in any one day or in excess of 40 hours in any one week, whichever is greater. d. Contractor shall promptly, as due, make payment to any person or co partnership, association or corporation furnishing medical, surgical and hospital care services or other needed care and attention, incident to sickness or injury, to the employees of such Contractor, of all sums which the Contractor agrees to pay for such services and all moneys and sums which the Contractor collected or deducted from the wages of Contractor's employees pursuant to any law, contract or agreement for the purpose of providing or paying for such services. e. Contractor agrees that if Contractor is a subject employer that is not exempt under ORS 656.126, that it shall comply with ORS 656.017. 22. Contractor Not an Agent of County. a. It is agreed by and between the parties that Contractor is not carrying out a function on behalf of County, and County does not have the right of direction or control of the manner in which Contractor delivers services under this Contract or exercise any control over the activities of Contractor. b. Contractor is not an officer, employee or agent of County as those terms are used in ORS 30.265. c. Contractor covenants for itself and its successors in interest and assigns that it will not claim or assert that Contractor is an officer, employee or agent of the County, as those terms are used in ORS 30.265. Page 7 of 9 — Personal Services Contract No. 2008-170 Heery International for Jail Project 23. Partnership. County is not, by virtue of this contract, a partner or joint venturer with Contractor in connection with activities carried out under this contract, and shall have no obligation with respect to Contractor's debts or any other liabilities of each and every nature. 24. Indemnity and Hold Harmless. a. To the fullest extent authorized by law Contractor shall defend, save, hold harmless and indemnify the County and its officers, employees and agents from and against all claims, suits, actions, losses, damages, liabilities costs and expenses of any nature to the extent attributable to the negligence of Contractor or its officers, employees, contractors, or agents under this Contract, including without limitation any claims that the work, the work product or any other tangible or intangible items delivered to County by Contractor that may be the subject of protection under any state or federal intellectual property law or doctrine, or the County's use thereof, infringes any patent, copyright, trade secret, trademark, trade dress, mask work utility design or other proprietary right of any third party. b. Neither contractor nor any attorney engaged by Contractor shall defend the claim in the name of Deschutes County or any department or agency thereof, nor purport to act as legal representative of the County or any of its departments or agencies without first receiving from the County's legal counsel, in a form and manner determined appropriate by the County's legal counsel, authority to act as legal counsel for the County, nor shall Contractor settle any claim on behalf of the Count without the approval of the County's legal counsel. c. To the extent permitted by Article XI, Section 10, of the Oregon Constitution and the Oregon Tort Claims Act, ORS 30.260 through 30.300, County shall defend, save, hold harmless and indemnify Contractor and its officers, employees and agents from and against all claims, suits, actions, losses, damages, liabilities costs and expenses of any nature resulting from or arising out of, or relating to the activities of County or its officers, employees, contractors, or agents under this Contract. 25. Waiver. a. County's delay in exercising, or failure to exercise any right, power, or privilege under this Contract shall not operate as a waiver thereof, nor shall any single or partial exercise or any right, power, or privilege under this Contract preclude any other or further exercise thereof or the exercise of any other such right, power, or privilege. b. The remedies provided herein are cumulative and not exclusive of any remedies provided by law. 26. Governing Law. This Contract shall be governed by and construed in accordance with the laws of the State of Oregon without regard to principles of conflicts of law. a. Any claim, action, suit or proceeding (collectively, "Claim") between County and Contractor that arises from or relates to this Contract shall be brought and conducted solely and exclusively within the Circuit Court of Deschutes County for the State of Oregon; provided, however, if a Claim shall be brought in federal forum, then it shall be brought and conducted solely and exclusively within the United States District Court for the District of Oregon. b. CONTRACTOR, BY EXECUTION OF THIS CONTRACT, HEREBY CONSENTS TO THE IN PERSONAM JURISDICTION OF SAID COURTS. The parties agree that the UN Convention on International Sales of Goods shall not apply. 27. Severability. If any term or provision of this Contract is declared by a court of competent jurisdiction to be illegal or in conflict with any law, the validity of the remaining terms and provisions shall not be affected, and the rights and obligations of the parties shall be construed and enforced as if this Contract did not contain the particular term or provision held invalid. 28. Counterparts. This Contract may be executed in several counterparts, all of which when taken together shall constitute one agreement binding on all parties, notwithstanding that all parties are not signatories to the same counterpart. Each copy of this Contract so executed shall constitute on original. 29. Attorney Fees. In the event an action, lawsuit or proceeding, including appeal there from, is brought for failure to observe any of the terms of this contract, each party shall be responsible for their own attorney fees, expenses, costs and disbursements for said action, lawsuit, proceeding or appeal. 30. Notice. Except as otherwise expressly provided in this Contract, any communications between the parties hereto or notices to be given hereunder shall be given in writing, to Contractor or County at the address or number set forth below or to such other addresses or numbers as either party may hereafter indicate in writing. Delivery may be by personal delivery, facsimile, or mailing the same, postage prepaid. a. Any communication or notice by personal delivery shall be deemed delivered when actually given to the designated person or representative. Page 8 of 9 — Personal Services Contract No. 2008-170 Heery International for Jail Project b. Any communication or notice sent by facsimile shall be deemed delivered when the transmitting machine generates receipt of the transmission. To be effective against County, such facsimile transmission shall be confirmed by telephone notice to the County Administrator. c. Any communication or notice mailed shall be deemed delivered five (5) days after mailing. Any notice under this Contract shall be mailed by first class postage or delivered as follows: To Contractor: Gordon Odette Vice President 319 Southwest Washington Street, Suite 1100 Portland, Oregon 97204 Fax No. 503-226-1476 To County: Susan Ross, Director Property and Facilities Department 14 NW Kearney Street Bend, Oregon 97701 Fax No. 541-317-3168 Phone: 541-383-6713 31. Merger Clause. This Contract and the attached exhibits constitute the entire agreement between the parties. a. All understandings and agreements between the parties and representations by either party concerning this Contract are contained in this Contract. b. No waiver, consent, modification or change in the terms of this Contract shall bind either party unless in writing signed by both parties. c. Any written waiver, consent, modification or change shall be effective only in the specific instance and for the specific purpose given. 34. Survival. All rights and obligations shall cease upon termination or expiration of this Contract, except for the rights and obligations set forth in Sections 4, 5, 8, 9, 15, 17, 18, 20, 22-27, 29 and 31-34. 34. Representations. a. Contractor's Representations. Contractor represents and warrants to County that: 1) Contractor has the power and authority to enter into and perform this Contract, 2) this Contract, when executed and delivered, shall be a valid and binding obligation of Contractor enforceable in accordance with its terms, 3) Contractor has the skill and knowledge possessed by well-informed members of its industry, trade or profession and Contractor will apply that skill and knowledge with care and diligence to perform the Work in a professional manner and in accordance with standards prevalent in Contractor's industry, trade or profession, 4) Contractor shall, at all times during the term of this Contract, be qualified, professionally competent, and duly licensed to perform the Work, and 5) Contractor prepared its proposal related to this Contract, if any, independently from all other proposers, and without collusion, fraud, or other dishonesty. b. Representations Cumulative. The warranties set forth in this section are in addition to, and not in lieu of, any other warranties provided. Page 9 of 9 — Personal Services Contract No. 2008-170 Heery International for Jail Project EXHIBIT 1 DESCHUTES COUNTY SERVICES CONTRACT Contract No. 2008-170 STATEMENT OF WORK, COMPENSATION PAYMENT TERMS and SCHEDULE 1. Contractor shall perform the following work (nothing in this statement of work / scope of services shall make Heery responsible for the Construction Manager/General Contractor's means and methods). Any costs outside the lump sum amount cannot be incurred without prior written approval by Owner. A. Owner's Representative services for the Jail Expansion Project will occur in two distinct phases: preconstruction services and construction services. Payment for the construction phase will occur only if Owner actually implements the construction phase of the Jail Expansion Project. B. Provide Owner's Representative services, on a basis agreed to on the attached schedule, marked Attachment "A", from the date this agreement is signed, through the commencement of the design phase, at which time the service shall be based upon a four- day -per -week schedule through project completion. The Contractor will complete the following services: 1. Assist Owner to develop and manage activities in the Project's milestone schedule, which are the key dates associated with start and finish of the entire project as well as phases of the project. 2. Review and provide comments associated with the Project's budget. 3. Provide review comments to the Owner through the design phase regarding constructability issues and value engineering options (value engineering services are further defined in Exhibit One, item L). 4. Assist Owner manage the distribution of project information (for example, direction to the Architect, response to questions originating with Jail staff, information provided to the public, etc.). Contractor is authorized to communicate on Owner's behalf except in cases where it will affect the budget, schedule, or quality of work as defined in the construction drawings. 5. Assist in the reconciliation of the CM/GC's estimate of cost and the Architect's estimate of cost at the point in time when the Guaranteed Maximum Price is established. This task excludes the production of independent cost estimates. The CM/GC and Architect have the primary responsibility to prepare cost estimates. 6. Participate with Owner and Architect representatives in site visits to existing detention facilities to obtain additional design and operation information. The time and expenses associated with this task will be considered an additional service outside the lump sum specified in this contract and will be billed on a time and materials basis at billing rates established in Section 4.0 of this Exhibit. C. Assist Owner in preparing advertisements relative to intent to solicit a CM/GC for the project. D. In conjunction with Owner, conduct pre-bid conference(s) to present the project requirements to the bidders. E. Coordinate communications related to bidder inquiries and seek resolution from the appropriate party and assist Owner forward appropriate addenda to the bidders. F. Assist Owner in the bid opening, evaluate the bids for completeness, responsiveness and price, including alternate prices and unit prices, and make recommendations to Owner in regard to the award of a contract. Page 1 of 4 - Exhibit 1 — Personal Service Contract No. 2008-170 Heery International for Jail Project G. Assist Owner with the CM/GC contract negotiations, including added or deleted scope as necessary prior to award of contract. H. Conduct, in conjunction with Owner and Architect, a pre -construction orientation conference(s) for the benefit of the successful Contractor and Subcontractors to orient the Contractor / Subcontractors to the various reporting procedures and site rules, including security concerns, prior to the commencement of actual construction. I. Produce for Owner construction reports documenting work accomplished, material deliveries, quality control issues, significant events, and correspondence received. Reports may include digital photo documents. Contractor shall provide a monthly report that reports progress and adherence or deviation from schedule, budget, and milestone schedule. A weekly report shall be provided that reflects the daily observations of the work site. Reports shall be provided in hard copy and, if requested, in electronic form. J. Act as a conduit for receiving, logging, and routing CM/GC submittals and Owner and Architect responses. The ultimate solution for the routing of submittals and Owner and Architect responses will be resolved as the work progresses. At a minimum, the Contractor will coordinate a process which addresses the Owner's needs. K. Act as Owner's representative in requesting modifications to the contract from the CM/GC. Perform review of CM/GC submissions for price and schedule modification. L. Assist Owner in discerning opportunities for value engineering modifications to the project. This activity will be completed based upon a review of the design documents as they are being developed and the work as it is being completed in the field. This activity does not represent a formal work session chaired by Heery with certified Value Engineering credentials. M. Conduct regular meetings with the CM/GC to update project schedule, plan for upcoming work, and coordinate on-site activities. N. Meet with CM/GC, Architect, and Owner to determine areas and extent of responsibility, scheduling of work, and resulting needs for inspection, levels of inspection intensity, notification procedures, and frequency and content of required reports. O. Review plans, specifications, shop drawings, and other technical data to obtain a full knowledge of the project and to better administer the scope of work on behalf of Owner. P. Conduct timely observations of construction work in progress and completed work to assist in determining compliance with approved plans and specifications. Q. Establish procedures for investigating and making recommendations on resolution of discrepancies between approved methods and contract documents and the actual construction work and product; participate in resolving "site conditions" that require deviation from contract documents. R. Resolve minor questions and interpretations of the contract documents in the field, and act as Owner's liaison between all parties on major questions and interpretations. S. Enforce contract provisions as County's representative on site. T. Provide advice to Owner concerning the need for additional expertise and consultation. U. Review and evaluate subcontractor bids for those portions of the work that are put out to competitive bid. V. Meet with local and state building officials as needed. Page 2 of 4 - Exhibit 1 — Personal Service Contract No. 2008-170 Heery International for Jail Project W. Assist the Owner in coordinating the installation of Owner supplied materials, incorporating milestone dates into the project schedule, determining status of schedule critical deliveries, recommending options addressing how move -in activities can be accomplished, and assisting with move activities. X. Check quantity and quality of materials being provided or installed by CM/GC, and check test reports on materials used to determine compliance with contract documents. Y. Review work completed by CM/GC; check and, if appropriate, approve by signature all requests for progress payments by the CM/GC. Z. Review CM/GC's requests for increases in the contract amount and extensions in contract durations and provide options and recommendations for solutions. AA. Assist Owner in negotiations with CM/GC concerning change orders and provide cursory reviews and initial/preliminary recommendations regarding claims for additional time or money. If in Contractor's judgment in-depth claims analysis which cannot be completed by Contractor's on-site project manager is recommended, then County may approve an amendment to this Agreement to authorize such additional work. BB. Review CM/GC's construction schedule for completeness and suitability. Advise County of any potential delays or schedule problems. CC.Coordinate testing and inspecting services as required by local jurisdictions (i.e., assist Owner in selection and then coordinate the services provided by a special inspection and testing firm). DD. Work with Owner to coordinate temporary provisions for the jail's operation, including the safety and security of the facility throughout the project. EE. Review and make recommendations to Owner for final acceptance of work. FF. Confirm the completeness and note incomplete portions of the construction record drawings to be submitted by the CM/GC. GG.Other tasks as specifically requested by Owner that can be completed within the scope defined in the Request for Proposal and the Contractor's (Heery's) response. 2. County Services. County shall provide Contractor, at County's expense, with material and services described as follows: A. Office area during the Construction Phase, including the following items: • All utility services • Heating • Air conditioning • Voice line • Data Line • Access to a restroom • Custodial service B. Office furnishings which include the following: • Desk • Desk chair • Credenza • Small conference table • Four conference table chairs • Four drawer lateral file Page 3 of 4 - Exhibit 1 — Personal Service Contract No. 2008-170 Heery International for Jail Project • Drawing rack (capable of holding 20 sets of drawings) • Work surface for fax 3. Consideration. A. County shall pay Contractor on a lump sum basis, based upon a monthly payment schedule, to be developed after a milestone schedule is established. B. Contractor shall be entitled to reimbursement for expenses as set forth in Exhibit 5 ❑X YES 0 NO [Check one] 4. The maximum compensation. A. The maximum compensation under this contract, excluding allowable expenses, is $499,833.00 (Four hundred ninety nine thousand, eight hundred and thirty three dollars 00/100). B. Contractor shall not submit invoices for, and Owner shall not pay for any amount in excess, of the maximum compensation amount set forth above. 1) If this maximum compensation amount is increased by amendment of this contract, the amendment shall be fully effective before contractor performs work subject to the amendment. 2) Contractor shall notify Owner in writing of the impending expiration of this Contract thirty (30) calendar days prior to the expiration date. C. If the Owner requests additional services (services not described in this Exhibit (One), the compensation will be based on a lump sum proposal or a time spent basis utilizing the following hourly billing rates): • Principal -in -Charge • Project Director • Project Manager • Construction Manager • Cost Estimator • Scheduler / Claims Analysis • Scheduler • Administrative Assistant $150 / hour $150 / hour $125 / hour $102 / hour $128 / hour $121 / hour $102 / hour $ 50 / hour 4% billing rate escalation factor will be added effective January 1, 2009, and January 1st of each subsequent year. 5. Schedule of Performance or Delivery. A. County's obligation to pay depends upon Contractor's delivery or performance in accordance with the schedule listed in Exhibit 1, Paragraph 1. B. County will pay only for completed work that conforms to the terms of the Contract. Page 4 of 4 - Exhibit 1 — Personal Service Contract No. 2008-170 Heery International for Jail Project EXHIBIT 2 DESCHUTES COUNTY SERVICES CONTRACT Contract No. 2008-170 INSURANCE REQUIREMENTS Contractor shall at all times maintain in force at Contractor's expense, each insurance noted below. Insurance coverage must apply on a primary or non-contributory basis. All insurance policies, except Professional Liability, shall be written on an occurrence basis and be in effect for the term of this contract. Policies written on a "claims made" basis must be approved and authorized by Deschutes County. Contractor Name: Heery International, Incorporated Workers Compensation insurance in compliance with ORS 656.017, requiring Contractor and all subcontractors to provide workers' compensation coverage for all subject workers, or provide certification of exempt status. Employer's Liability Insurance with coverage limits of not less than $500,000 must be included. Professional Liability insurance with an occurrence combined single limit of not less than: Per Occurrence limit Annual Aggregate limit ❑ $500,000 0 $500,000 O $1,000,000 0 $1,000,000 O $2,000,000 0 $2,000,000 Professional Liability insurance covers damages caused by error, omission, or negligent acts related to professional services provided under this Contract. The policy must provide extended reporting period coverage, sometimes referred to as "tail coverage" for claims made within two years after this contract is completed. O Required by County 0 Not required by County (one box must be checked) Commercial General Per Occurrence limit O $500,000 ❑ $1,000,000 ❑ $2,000,000 Liability insurance with a combined single limit of not less than: Annual Aggregate limit ❑ $500,000 ❑ $1,000,000 ❑ $2,000,000 Commercial General Liability insurance includes coverage for personal injury, bodily injury, advertising injury, property damage, premises, operations, products, completed operations and contractual damages. By separate endorsement, the policy shall name Deschutes County, its officers, agents, employees and volunteers as an additional insured. The additional insured endorsement shall not include declarations that reduce any per occurrence or aggregate insurance limit. The contractor shall provide additional coverage based on any outstanding claim(s) made against policy limits to ensure that minimum insurance limits required by the County are maintained. Construction contracts may include aggregate limits that apply on a "per location" or "per project" basis. O Required by County 0 Not required by County (One box must be checked) Page 1 of 2 - Exhibit 2 - Personal Service Contract No. 2008-170 Heery International for Jail Project Automobile Liability insurance with a combined single limit of not less than: Per Occurrence ❑ $500,000 ❑ $1,000,000 ❑ $2,000,000 Automobile Liability insurance includes coverage for bodily injury and property damage resulting from operation of a motor vehicle. Commercial Automobile Liability Insurance shall provide coverage for any motor vehicle (symbol 1 on some insurance certificates) driven by or on behalf of Contractor during the course of providing services under this contract. Commercial Automobile Liability is required for contractors that own business vehicles registered to the business. Examples include: plumbers, electricians or construction contractors. An Example of an acceptable personal automobile policy is a contractor who is a sole proprietor that does not own vehicles registered to the business. ❑ Required by County 0 Not required by County (one box must be checked) Additional Requirements. Contractor shall pay all deductibles and retentions. A cross -liability clause or separation of insured's condition must be included in all commercial general liability policies required by this Contract. Contractor's coverage will be primary in the event of loss. Certificate of Insurance Required. Contractor shall furnish a current Certificate of Insurance to the County with the signed Contract. The Certificate shall provide that there shall be no cancellation, termination, material change, or reduction of limits of the insurance coverage without at least 30 days written notice from the Contractor's insurer to the County. The Certificate shall also state the deductible or, if applicable, the self-insured retention level. For commercial general liability coverage, the Certificate shall also provide, by policy endorsement, that Deschutes County, its agents, officers, employees and volunteers are additional insureds with respect to Contractor's services provided under this Contract. The endorsement must be in a format acceptable to Deschutes County. If requested, complete copies of insurance policies shall be provided to the County. Risk Management review Date Page 2 of 2 - Exhibit 2 - Personal Service Contract No. 2008-170 Heery International for Jail Project EXHIBIT 3 DESCHUTES COUNTY SERVICES CONTRACT Contract No. 2008-170 CERTIFICATION STATEMENT FOR CORPORATION OR INDEPENDENT CONTRACTOR NOTE: Contractor Shall Complete A or B in addition to C below: A. CONTRACTOR IS A CORPORATION, LIMITED LIABILITY COMPANY OR A PARTNERSHIP. 1 certify under penalty of perjury that Contractor is a [check one]: X Corporation ❑ Limited Liability Company ❑ Partnership authorized to do business in the State of Oregon. Signature Title Date B. CONTRACTOR IS A SOLE PROPRIETOR WORKING AS AN INDEPENDENT CONTRACTOR. Contractor certifies under penalty of perjury that the following statements are true: 1. If Contractor performed labor or services as an independent Contractor last year, Contractor filed federal and state income tax returns last year in the name of the business (or filed a Schedule C in the name of the business as part of a personal income tax return), and 2. Contractor represents to the public that the labor or services Contractor provides are provided by an independently established business registered with the State of Oregon, and 3. All of the statements checked below are true. NOTE: Check all that apply. You shall check at least four (4) - to establish that you are an Independent Contractor. A. The labor or services I perform is primarily carried out at a location that is separate from my residence or is primarily carried out in a specific portion of my residence that is set aside as the location of the business. B. I purchase commercial advertising or I have business cards for my business, or I am a member of a trade association. C. My business telephone listing is separate from my personal residence telephone listing. D. I perform labor or services only under written contracts. E. Each year I perform labor or services for at least two different persons or entities. F. I assume financial responsibility for defective workmanship or for service not provided by purchasing performance bonds, errors and omission insurance or liability insurance, or providing warranties relating to the labor or services I provide. Contractor Signature Date Page 1 of 2 - Exhibit 3 - Personal Services Contract No. 2008-170 Heery International for Jail Project C. Representations. Contractor certifies under penalty of perjury that the following statements are true to the best of Contractor's knowledge: 1. Contractor has the power and authority to enter into and perform this contract; 2. This contract, when executed and delivered, shall be a valid and binding obligation of Contractor enforceable in accordance with its terms; 3. The services under this Contract shall be performed in a good and workmanlike manner and in accordance with professional standards; and 4. Contractor shall, at all times during the term of this contract, be qualified, professionally competent, and duly licensed to perform the services. 5. To the best of Contractor's knowledge, Contractor is not in violation of any tax laws described in ORS 305.380(4), 6. Contractor understands that Contractor is responsible for any federal or state taxes applicable to any consideration and payments paid to Contractor under this contract; and 7. Contractor has not discriminated against minority, women or small business enterprises in obtaining any required subcontracts. Contractor Signature Date Page 2 of 2 - Exhibit 3 - Personal Services Contract No. 2008-170 Heery International for Jail Project Attachment "A" ASCO ACORD,,,, CERTIFICATE OF LIABILITY INSURANCE DATE(MM/DD/YYYY) 4/10/2008 TYPE OF INSURANCE PRODUCER (678) 726-1000 Al Insurance Group P.O. Box 80568 Athens, GA 30608 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. INSURERS AFFORDING COVERAGE NAIC # INSURED Heery International, Inc. 999 Peachtree St., N.E. Atlanta, GA 30309 INSURER A: The Travelers Indemnity Company GENERAL INSURER B: Zurich American Insurance Company VTC2KC05787B632 INSURER c: Continental Casualty Company 11/1/2008 INSURER D: $ 1,000,000 INSURER E: pREM SESO(Ea occu Dente) COVERAGES THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. AGGREGATE LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. INSR LTR ADD'L INSRD TYPE OF INSURANCE POLICY NUMBER POLICY EFFECTIVE DATE (MM/DD/YY) POLICY EXPIRATION DATE (MM/DD/YY) LIMITS A GENERAL LIABILITY COMMERCIAL GENERAL LIABILITY VTC2KC05787B632 11/1/2007 11/1/2008 EACH OCCURRENCE $ 1,000,000 X pREM SESO(Ea occu Dente) $ 300,000 CLAIMS MADE X OCCUR MED EXP (Any one person) $ 15,000 PERSONAL & ADV INJURY $ 1,000,000 GENERAL AGGREGATE $ 2,000,000 GEN'L AGGREGATE LIMIT APPLIES PER: PRODUCTS - COMP/OP AGG $ 2,000,000 7 POLICY X PRO- X LOC JECT B AUTOMOBILE UABILITY ANY AUTO ALL OWNED AUTOS SCHEDULED AUTOS HIRED AUTOS NON -OWNED AUTOS BAP8196268-06 3/1/2008 3/1/2009 COMBINED SINGLE LIMIT (Ea accident) $ 1,000,000 X BODILY INJURY (Per person) X BODILY INJURY (Per accident) $ X PROPERTY DAMAGE (Per accident) GARAGE LIABILITY ANY AUTO AUTO ONLY - EA ACCIDENT $ OTHER THAN EA ACC $ AUTO ONLY: AGG $ EXCESS/UMBRELLA LIABILITY EACH OCCURRENCE $ OCCUR CLAIMS MADE AGGREGATE $ DEDUCTIBLE RETENTION $ $ $ $ B WORKERS COMPENSATION AND EMPLOYERS' LIABILITY ANY PROPRIETOR/PARTNER/EXECUTIVE OFFICER/MEMBER EXCLUDED? If yes, describe under SPECIAL PROVISIONS below WC8196267-06 3/1/2008 3/1/2009 X WC STATU- OTH- TORY LIMITS ER E.L. EACH ACCIDENT $ 1,000,000 E.L. DISEASE - EA EMPLOYEE $ 1,000,000 E.L. DISEASE - POLICY LIMIT $ 1,000,000 C C OTHER Professional Liability Professional Liability AEH114091454 AEH114091454 4/1/2008 4/1/2008 4/1/2009 4/1/2009 Limit $2,000,000 Deductible $750,000 DESCRIPTION OF OPERATIONS / LOCATIONS / VEHICLES / EXCLUSIONS ADDED BY ENDORSEMENT / SPECIAL PROVISIONS Re: Deschutes County Expansion & Renovation Per written contract with the Named Insured, Deschutes County, agents, employees and volunteers are included as an additional insured with regard to General Liability and Auto Liability but only to the extent of the insured's negligence subject to Policy Exclusions, Terms & Conditions. RTIFICATE HOLDER CANCELLATION Deschutes County County Administrator 1300 NW Wall Street, Suite 200 Bend, OR 97701- SHOULD ANY OF THE ABOVE DESCRIBED POUCIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, THE ISSUING INSURER WILL ENDEAVOR TO MAIL 30 DAYS WRITTEN NOTICE TO THE CERTIFICATE HOLDER NAMED TO THE LEFT, BUT FAILURE TO DO SO SHALL IMPOSE NO OBLIGATION OR LIABILITY OF ANY KIND UPON THE INSURER, ITS AGENTS OR REPRESENTATIVES. AUTHORIZED REPRESENTATIVE © ACORD CORPORATION 1988 COMMERCIAL GENERAL LIABILITY THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY BLANKET ADDITIONAL INSURED (CONTRACTORS) This endorsement modifies insurance provided under the following: COMMERCIAL GENERAL LIABILITY COVERAGE PART 1. WHO IS AN INSURED — (Section II) is amended to include any person or organization that you agree in a "written contract requiring insurance" to include as an additional insured on this Cover- age Part, but: a) Only with respect to liability for "bodily injury", "property damage" or "personal injury"; and b) If, and only to the extent that, the injury or damage is caused by acts or omissions of you or your subcontractor in the performance of "your work" to which the "written contract requiring insurance" applies. The person or organization does not qualify as an additional insured with respect to the independent acts or omissions of such person or organization. 2. The insurance provided to the additional insured by this endorsement is limited as follows: a) In the event that the Limits of Insurance of this Coverage Part shown in the Declarations exceed the limits of liability required by the "written contract requiring insurance", the in- surance provided to the additional insured shall be limited to the limits of liability re- quired by that "written contract requiring in- surance". This endorsement shall not in- crease the limits of insurance described in Section 111— Limits Of Insurance. b) The insurance provided to the additional in- sured does not apply to "bodily injury", "prop- erty damage" or "personal injury" arising out of the rendering of, or failure to render, any professional architectural, engineering or sur- veying services, including: i. The preparing, approving, or failing to prepare or approve, maps, shop draw- ings, opinions, reports, surveys, field or- ders or change orders, or the preparing, approving, or failing to prepare or ap- prove, drawings and specifications; and ii. Supervisory, inspection, architectural or engineering activities. CG D2 46 08 05 c) The insurance provided to the additional in- sured does not apply to "bodily injury" or "property damage" caused by "your work" and included in the "products -completed op- erations hazard" unless the "written contract requiring insurance" specifically requires you to provide such coverage for that additional insured, and then the insurance provided to the additional insured applies only to such "bodily injury" or "property damage" that oc- curs before the end of the period of time for which the "written contract requiring insur- ance" requires you to provide such coverage or the end of the policy period, whichever is earlier. 3. The insurance provided to the additional insured by this endorsement is excess over any valid and collectible "other insurance", whether primary, excess, contingent or on any other basis, that is available to the additional insured for a loss we cover under this endorsement. However, if the "written contract requiring insurance" specifically requires that this insurance apply on a primary basis or a primary and non-contributory basis, this insurance is primary to "other insurance" available to the additional insured which covers that person or organization as a named insured for such loss, and we will not share with that "other insurance". But the insurance provided to the additional insured by this endorsement still is excess over any valid and collectible "other in- surance", whether primary, excess, contingent or on any other basis, that is available to the addi- tional insured when that person or organization is an additional insured under such "other insur- ance". 4. As a condition of coverage provided to the additional insured by this endorsement: a) The additional insured must give us written notice as soon as practicable of an "occur- rence" or an offense which may result in a claim. To the extent possible, such notice should include: Co 2005 The St. Paul Travelers Companies, Inc. Page 1 of 2 COMMERCIAL GENERAL LIABILITY 1. How, when and where the "occurrence" or offense took place; ii. The names and addresses of any injured persons and witnesses; and iii. The nature and location of any injury or damage arising out of the "occurrence or offense. b) If a claim is made or "suit" is brought against the additional insured, the additional insured must: i. Immediately record the specifics of the claim or "suit" and the date received; and ii. Notify us as soon as practicable. The additional insured must see to it that we receive written notice of the claim or "suit' as soon as practicable. c) The additional insured must immediately send us copies of all legal papers received in connection with the claim or "suit", cooperate with us in the investigation or settlement of the claim or defense against the "suit", and otherwise comply with all policy conditions. d) The additional insured must tender the de- fense and indemnity of any claim or "suit" to Page 2 of 2 any provider of "other insurance" which would cover the additional insured for a Toss we cover under this endorsement. However, this condition does not affect whether the insur- ance provided to the additional insured by this endorsement is primary to "other insur- ance" available to the additional insured which covers that person or organization as a named insured as described in paragraph 3. above. 5. The following definition is added to SECTION V. — DEFINITIONS: "Written contract requiring insurance" means that part of any written contract or agreement under which you are required to include a person or organization as an additional in- sured on this Coverage Part, provided that the "bodily injury" and "property damage" oc- curs and the "personal injury" is caused by an offense committed: a. After the signing and execution of the contract or agreement by you; b. While that part of the contract or agreement is in effect; and c. Before the end of the policy period. © 2005 The St. Paul Travelers Companies, Inc. CG D2 46 08 05