Authorize the City Attorney to take legal action to recover costs arising from the failure of fish passage improvements on the Boones Ferry Culvert Replacement Project

WHEREAS, the City entered into Contract No. 30003652 and Contract No. 30006906 with BergerABAM, Inc. and its successor-in-interest, WSP USA, Inc. (WSP), for design and construction management services for the Boones Ferry Culvert Replacement Project (Project); and WHEREAS, the City was required to obtain a removal/fill permit from the Oregon Department of State Lands to construct the Project, which included allowing fish passage; and WHEREAS, the City entered into Contract No. 30007166 with MJ Hughes Construction, Inc. (MJ Hughes) for the construction of the Project; and WHEREAS, the in-stream fish passage improvements for the Project were generally completed in the summer and fall of 2020; and WHEREAS, a rain event occurred in December of 2020 and said improvements failed or were otherwise destroyed; and WHEREAS, the Oregon Department of State Lands determined that the Project does not comply with the original permitting requirements and, as a result, the City is under a consent order to resolve the permit violations and restore fish passage; and WHEREAS, the City has completed initial investigations and has determined that the Project failure was due to WSP and/or MJ Hughes because the Project would not have failed had it been correctly designed and constructed in accordance with such design; and WHEREAS, the law provides a remedy for the City to recover costs attributable to the acts and omissions of those responsible for the failure of the Project improvements; and WHEREAS, it is in the public interest for the City to recover public funds unnecessarily expended because of breach of contract, failure to adhere to applicable professional standards of care, and/or negligence. NOW, THEREFORE, BE IT RESOLVED, that the City Attorney or their designee is authorized to commence an action in any competent tribunal to protect the City’s rights and recover damages and/or any other relief against WSP, MJ Hughes, and any and all design professionals, engineers, and contractors for which there is a good-faith basis to assert legal claims; to pursue such action to conclusion in any higher tribunal; and to make any stipulation, agreement, or admission that, in the City Attorney’s judgment, may be in the best interest of the City. The City Attorney is further authorized to retain outside counsel to assist in the prosecution of such litigation if, in their judgment, doing so is in the best interest of the City.