Larkin Group Personal Services Agreement - CITY OF TIGARD, OREGON
PERSONAL SERVICES AGREEMENT
THIS AGREEMENT made and entered into this 18th day of August 2009 by and between the CITY
OF TIGARD,a municipal corporation of the State of Oregon,hereinafter called CITY,and The Larkin
Group Incorporated,hereinafter called CONTRACTOR.
RECITALS
WHEREAS,the City's 2008-2009 fiscal Year budget provides for professional services;and
WHEREAS, City has need for the services of a company with a particular training, ability, knowledge,
and experience possessed by CONTRACTOR,and
WHEREAS, City has determined that CONTRACTOR is qualified and capable of performing the
professional services as CITY does hereinafter require,under those terms and conditions set forth:
NOW,THEREFORE,the parries agree as follows:
1. SERVICES TO BE PROVIDED:
CONTRACTOR shall initiate services immediately upon receipt of CITY'S notice to proceed,
together with an executed copy of this Agreement. CONTRACTOR agrees to complete work
which is detailed in Exhibit "A" and by this reference made a part hereof. Any and all work
assigned by the City will be contained in subsequent scope of work as needed.
2. EFFECTIVE DATE AND DURATION:
This Agreement shall become effective upon the date of execution,and shall expire,unless
otherwise terminated or extended,on March 1,2009. All work under this Agreement shall be
completed prior to the expiration of this Agreement.
3. COMPENSATION:
CITY agrees to pay CONTRACTOR a not to exceed amount of Twenty Thousand and
no/100 dollars ($20,000) for government affairs services on transportation issues as described
in Exhibit A. Any and all payments make to the contractor shall be based upon the following
applicable terms:
A. Payment by CITY to CONTRACTOR for performance of services under this Agreement
includes all expenses incurred by CONTRACTOR,with the exception of expenses, if any,
identified in this Agreement as separately reimbursable.
B. The City agrees to pay the Contractor a not to exceed amount of$20,000. The City agrees
to make a payment to the contractor monthly, based on Contractor's invoice, subject to the
approval of the City Manager or designee, and not more frequently than monthly.
Payment shall be made only for work actually completed as of the date of the invoice
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C. Payment by City shall release City from any further obligation for payment to Contractor,
for services performed or expenses incurred as of the date of the invoice. Payment shall
not be considered acceptance or approval of any work or waiver of any defects therein.
D. Contractor shall make payments promptly, as due to all person supplying labor or materials
for the prosecution of this work.
E. Contractor shall not permit any hen or claim to be filed or prosecuted against the City on
any account of any labor or material furnished.
F. Contractor shall pay to the Department of Revenue all sums withheld from employees
pursuant to ORS 316.167.
G. If Contractor fails, neglects or refuses to make prompt payment of any claim for labor or
services furnntshed to Contractor or a subcontractor by any person as such claim becomes
due, City's Finance Director may pay such claim and charge the amount of the payment
against funds due or to become due the Contractor. The payment of the claim in this
manner shall not relieve Contractor or their surety from obligation with respect to any
unpaid claims.
H. The City certifies that sufficient funds are available and authorized for expenditure to
finance costs of this agreement.
4. OWNERSHIP OF WORK PRODUCT:
CITY shall be the owner of and shall be entitled to possession of any and all work products of
CONTRACTOR which result from this Agreement, including any computations, plans,
correspondence or pertinent data and information gathered by or computed by
CONTRACTOR prior to termination of this Agreement by CONTRACTOR or upon
completion of the work pursuant to this Agreement.
5. ASSIGNMENT/DELEGATION:
Neither party shall assign, sublet or transfer any interest in or duty under this Agreement
without the written consent of the other and no assignment shall be of any force or effect
whatsoever unless and until the other party has so consented. If CITY agrees to assignment of
tasks to a subcontract, CONTRACTOR shall be fully responsible for the acts or omissions of
any subcontractors and of all persons employed by them, and neither the approval by CITY of
any subcontractor nor anything contained herein shall be deemed to create any contractual
relation between the subcontractor and CITY.
6. STATUS OF CONTRACTOR AS INDEPENDENT CONTRACTOR:
CONTRACTOR certifies that:
A. CONTRACTOR acknowledges that for all purposes related to this Agreement,
CONTRACTOR is and shall be deemed to be an independent contractor as defined by
ORS 670.700 and not an employee of CITY, shall not be entitled to benefits of any kind to
which an employee of CITY is entitled and shall be solely responsible for all payments and
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taxes required by law. Furthermore,in the event that CONTRACTOR is found by a court
of law or any administrative agency to be an employee of CITY for any purpose, CITY
shall be entitled to offset compensation due, or to demand repayment of any amounts paid
to CONTRACTOR under the terms of this Agreement,to the full extent of any benefits or
other remuneration CONTRACTOR receives (from CITY or third party) as a result of said
finding and to the full extent of any payments that City is required to make (to
CONTRACTOR or to a third party) as a result of said finding.
B. The undersigned CONTRACTOR hereby represents that no employee of the CITY,or any
partnership or corporation in which a CITY employee has an interest, has or will receive
any remuneration of any description from CONTRACTOR, either directly or indirectly,in
connection with the letting or performance of flus Agreement, except as specifically
declared in writing.
If this payment is to be charged against Federal funds, CONTRACTOR certifies that he or
she is not currently employed by the Federal Government and the amount charged does
not exceed lus or her normal charge for the type of service provided.
CONTRACTOR and its employees, if any, are not active members of the Oregon Public
Employees Retirement System and are not employed for a total of 600 hours or more in the
calendar year by any public employer participating in the Retirement System.
C. CONTRACTOR certifies that it currently has a CITY business license or will obtain one
prior to delivering services under this Agreement.
D. CONTRACTOR is not an officer, employee, or agent of the CITY as those terms are used
in ORS 30.265.
7. INDEMNIFICATION:
CITY has relied upon the professional ability and training of CONTRACTOR as a material
inducement to enter into this Agreement. CONTRACTOR warrants that all its work will be
performed in accordance with generally accepted professional practices and standards as well as
the requirements of applicable federal, state and local laws, it being understood that acceptance
of a Contractor's work by CITY shall not operate as a waiver or release.
CONTRACTOR agrees to indemnify and defend the CITY, its officers, agents and employees
and hold them harmless from any and all liability, causes of action, claims, losses, damages,
judgments or other costs or expenses including attorney's fees and witness costs and (at both
trial and appeal level, whether or not a trial or appeal ever takes place) that may be asserted by
any person or entity which in any way arise from, during or in connection with the performance
of the work described in this contract, except liability arising out of the sole negligence of the
CITY and its employees. Such indemnification shall also cover claims brought against the
CITY under state or federal worker's compensation laws. If any aspect of this indemnity shall
be found to be illegal or invalid for any reason whatsoever, such illegality or invalidity shall not
affect the validity of the remainder of this indemnification.
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8. INSURANCE:
CONTRACTOR shall maintain business liability insurance acceptable to CITY in full force and
effect throughout the term of this contract. The CITY requires the CONTRACTOR to carry
business liability insurance with the following limits:
Coverage Limit
General Aggregate $2,000,000
Products-Complete Operations $2,000,000
Personal and Advertising Injury $1,000,000
Liability and Medical Expenses $1,000,000
Medical Expenses (Any one person) $10,000
CONTRACTOR shall also carry and maintain, in full force and effect throughout the term of
this contract, automobile insurance deemed acceptable to the CITY. The CONTRACTOR'S
automobile liability insurance coverage shall not be less than$500,000 combined single limit.
Primary Coverage Clarification: All parties agree that contractor's insurance policies will
be primary in the event of a loss as a result of contractor's activities.
9. METHOD AND PLACE OF SUBMITTING NOTICE, BILLS AND PAYMENTS
All notices, bills and payments shall be made in writing and may be given by personal delivery,
mail or by fax. Payments may be made by personal delivery, mail or electronic transfer. The
following addresses shall be used to transmit notices,bills,payments and other information:
CITY OF TIGARD THE LARKIN GROUP INC.
Attn: Liz Newton,Assistant City Manager Attn: Geoff Larkin
Address: 13125 SW Hall Blvd. Address: 13946 NW Charlton Rd.
Tigard, Oregon 97223 Portland, OR 97231-1436
Phone: 503-718-2412 Phone: 503-381-5813
Fax: 503-684-7297 Fax:
E-mail: Lizatigard-or.eov E-mail: geofflarkinawa.com
and when so addressed, shall be deemed given upon deposit in the United States mail, postage
prepaid, or when so faxed shall be deemed given upon successful fax. In all other instances,
notices, bills and payments shall be deemed given at the time of actual delivery. Changes may
be made in the names and addresses of the person to whom notices, bills and payments are to
be given by giving written notice pursuant to this paragraph.
10. MERGER
This writing is intended both as a final expression of the Agreement between the parties with
respect to the included terms and as a complete and exclusive statement of the terms of the
Agreement. No modification of this Agreement shall be effective unless and until it is made in
writing and signed by both parties.
11. PROFESSIONAL SERVICES:
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The CITY requires that services provided pursuant to this agreement shall be provided to the
CITY by a CONTRACTOR that does not represent clients on matters contrary to CITY
interests. Further, CONTRACTOR shall not engage services of an attorney and/or other
professional who individually, or through members of his/her same firm, represents clients on
matters contrary to CITY interests.
Should the CONTRACTOR represent clients on matters contrary to CITY interests or engage
the services on an attorney and/or other professional who individually, or through members of
his/her same firm, represents clients on matters contrary to CITY interests, CONTRACTOR
shall consult with the appropriate CITY representative regarding the conflict.
After such consultation, the CONTRACTOR shall have seven (7) days to eliminate the conflict
to the satisfaction of the CITY. If such conflict is not eliminated within the specified time
period, the agreement may be terminated pursuant to Section 13 (B)(3) of this agreement.
12. TERMINATION WITHOUT CAUSE:
At any time and without cause, CITY shall have the right in its sole discretion, to terminate this
Agreement by giving notice to CONTRACTOR. If CITY terminates the contract pursuant to
this paragraph,it shall pay CONTRACTOR for services rendered to the date of termination.
This contract may be terminated at any time by CONTRACTOR subject to 7-day written
notice of such termination.
13. TERMINATION WITH CAUSE:
A. CITY may terminate this Agreement effective upon dehvery of written notice to
CONTRACTOR, or at such later date as may be established by CITY, under any of the
following conditions:
1. If CITY funding from federal, state, local, or other sources is not obtained and
continued at levels sufficient to allow for the purchase of the indicated quantity of
services. This Agreement may be modified to accommodate a reduction in funds
2. If federal or state regulations or guidelines are modified,changed, or interpreted in such
a way that the services are no longer allowable or appropriate for purchase under flus
Agreement.
3. If any license or certificate required by law or regulation to be held by
CONTRACTOR, its subcontractors, agents, and employees to provide the services
required by this Agreement is for any reason denied,revoked,or not renewed.
4. If CONTRACTOR becomes insolvent, if voluntary or involuntary petition in
bankruptcy is filed by or against CONTRACTOR, if a receiver or trustee is appointed
for CONTRACTOR, or if there is an assignment for the benefit of creditors of
CONTRACTOR.
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Any such termination of this agreement under paragraph (a) shall be without prejudice
to any obligations or liabilities of either party already accrued prior to such termination.
B. CITY, by written notice of default (including breach of contract) to CONTRACTOR, may
terminate the whole or any part of this Agreement:
1. If CONTRACTOR fails to provide services called for by this agreement within the
time specified herein or any extension thereof,or
2. If CONTRACTOR fails to perform any of the other provisions of this Agreement, or
so fails to pursue the work as to endanger performance of this agreement in accordance
with its terms, and after receipt of written notice from CITY, fails to correct such
failures within ten (10) days or such other period as CITY may authorize.
3. If CONTRACTOR fails to eliminate a conflict as described in Section 11 of this
agreement.
The rights and remedies of CITY provided in the above clause related to defaults (including
breach of contract) by CONTRACTOR shall not be exclusive and are in addition to any other
rights and remedies provided by law or under flus Agreement.
If CITY terminates this Agreement under paragraph (b), CONTRACTOR shall be entitled to
receive as full payment for all services satisfactorily rendered and expenses incurred, an amount
which bears the same ratio to the total fees specified in thus Agreement as the services
satisfactorily rendered by CONTRACTOR bear to the total services otherwise required to be
performed for such total fee; provided, that there shall be deducted from such amount the
amount of damages,if any, sustained by CITY due to breach of contract by CONTRACTOR.
Damages for breach of contract shall be those allowed by Oregon law, reasonable and
necessary attorney fees,and other costs of litigation at trial and upon appeal.
14. ACCESS TO RECORDS:
CITY shall have access to such books, documents, papers and records of CONTRACTOR as
are directly pertinent to this Agreement for the purpose of making audit, examination, excerpts
and transcripts.
15. FORCE MATEURE:
Neither CITY nor CONTRACTOR shall be considered in default because of any delays in
completion and responsibilities hereunder due to causes beyond the control and without fault
or negligence on the part of the parties so disenabled, including but not restricted to, an act of
God or of a public enemy, civil unrest, volcano, earthquake, fire, flood, epidem c, quarantine
restriction,area-wide strike, freight embargo,unusually severe weather or delay of subcontractor
or supplies due to such cause; provided that the parties so disenabled shall within ten (10) days
from the beginning of such delay, notify the other party in writing of the cause of delay and its
probable extent. Such notification shall not be the basis for a claim for additional
compensation. Each party shall, however, make all reasonable efforts to remove or eliminate
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such a cause of delay or default and shall, upon cessation of the cause, diligently pursue
performance of its obligation under the Agreement.
16. NON-WAIVER:
The failure of CITY to insist upon or enforce strict performance by CONTRACTOR of any of
the terms of this Agreement or to exercise any rights hereunder, should not be construed as a
waiver or relinquishment to any extent of its rights to assert or rely upon such terms or rights
on any future occasion.
17. NON-DISCRIMINATION:
CONTRACTOR agrees to comply with all applicable requirements of federal and state civil
rights and rehabilitation statues,rules,and regulations. CONTRACTOR also shall comply with
the Americans with Disabilities Act of 1990, ORS 659.425, and all regulations and
administrative rules established pursuant to those laws.
18. ERRORS:
CONTRACTOR shall perform such additional work as may be necessary to correct errors in
the work required under this Agreement without undue delays and without additional cost.
19. EXTRA(CHANGES)WORK
Only the City Manager Craig Prosser, or in his absence, the Assistant City Manager Liz
Newton, may authorize extra (and/or changes) work. Failure of CONTRACTOR to secure
authorization for extra work shall constitute a waiver of all right to adjustment in the contract
price or contract time due to such unauthorized extra work and CONTRACTOR thereafter
shall be entitled to no compensation whatsoever for the performance of such work.
20. WARRANTIES:
All work shall be guaranteed by CONTRACTOR for a period of one year after the date of final
acceptance of the work by the owner. CONTRACTOR warrants that all practices and
procedures, workmanship and materials shall be the best available unless otherwise specified in
the profession. Neither acceptance of the work nor payment therefore shall relieve
CONTRACTOR from liability under warranties contained in or implied by this Agreement.
21. ATTORNEY'S FEES:
In case suit or action is instituted to enforce the provisions of this contract, the parties agree
that the losing party shall pay such sum as the court may adjudge reasonable attorney fees and
court costs,including attorney's fees and court costs on appeal.
22. GOVERNING LAW:
The provisions of this Agreement shall be construed in accordance with the provisions of the
laws of the State of Oregon. Any action or suits involving any question arising under this
Agreement must be brought in the appropriate court of the State of Oregon.
23. COMPLIANCE WITH STATE AND FEDERAL LAWS/RULES:
CONTRACTOR shall comply with all federal, state, and local laws, rules and regulations,
including but not limited to, the requirements concerning working hours, overtime, medical
care, workers compensation insurance, health care payments, payments to employees and
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subcontractors and income tax withholding contained in ORS 279B, the provisions of which
are hereby made a part of this agreement.
24. CONFLICT BETWEEN TERMS:
It is further expressly agreed by and between the parties hereto that should there be any conflict
between the terms of this instrument in the proposal of the contract, this instrument shall
control and nothing herein shall be considered as an acceptance of the said terms of said
proposal conflicting herewith.
25. AUDIT:
CONTRACTOR shall maintain records to assure conformance with the terms and conditions
of this Agreement, and to assure adequate performance and accurate expenditures within the
contract period. CONTRACTOR agrees to permit CITY, the State of Oregon, the federal
government, or their duly authorized representatives to audit all records pertaining to this
Agreement to assure the accurate expenditure of funds.
26. SEVERABILITY:
In the event any provision or portion of this Agreement is held to be unenforceable or invalid
by any court of competent jurisdiction, the validity of the remaining terms and provisions shall
not be affected to the extent that it did not materially affect the intent of the parties when they
entered into the agreement.
27. CONDITIONS OF SUPPLYING A PUBLIC AGENCY:
Where applicable, seller must make payment promptly as due to persons supplying contractor
labor or materials for the execution of the work provided by this order. Contractor must pay all
contributions or amounts due from Contractor to the Industrial Accident Fund incurred in the
performance of this order. Contractor shall not permit any hen or claim to be filed or
prosecuted against Buyer or any subdivision of City on account of any labor or material to be
furnished. Contractor further agrees to pay to the Department of Revenue all sums withheld
from employees pursuant to ORS 316.167.
28. HOURS OF LABOR:
If labor is performed under this order, then no person shall be employed for more than eight
(8) hours in any one day, or forty (40) hours in any one week, except in case of necessity, or
emergency or where the public policy absolutely requires it, and in such cases, except cases of
contracts for personal services as defined in ORS 279A.055, the labor shall be paid at least time
and a half for all overtime in excess of eight (8) hours a day and for all work performed on
Saturday and on any legal holidays as specified in ORS 279C.540. In cases of contracts for
personal services as defined in ORS 279A.055,any labor shall be paid at least time and a half for
all hours worked in excess of forty (40) hours in any one week, except for those individuals
excluded under ORS 653.010 to 653.260 or under 29 USC SS 201-209.
29. MEDICAL CARE AND WORKERS' COMPENSATION:
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Contractor shall promptly, as due, make payment to any person, co-partnership, association or
corporation furnishing medical, surgical and hospital care or other needed care and attention
incident to sickness or injury, to the employee 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 the employees pursuant to any law, contractor
agreement for the purpose of providing or paying for such service.
30. COMPLETE AGREEMENT:
This Agreement and attached exhibits constitutes the entire Agreement between the parties.
No waiver, consent, modification, or change of terms of this Agreement shall bind either party
unless in writing and signed by both parties. Such waiver, consent, modification, or change if
made, shall be effective only in specific instances and for the specific purpose given. There are
no understandings, agreements, or representations, oral or written, not specified herein
regarding this Agreement. CONTRACTOR, by the signature of its authorized representative,
hereby acknowledges that he has read this Agreement,understands it and agrees to be bound by
its terms and conditions.
IN WITNESS WHEREOF, CITY has caused this Agreement to be executed by its duly
authorized undersigned officer and CONTRACTOR has executed this Agreement on the date
hereinabove first written.
CITY OF TIGARD-,. CONTRACTOR
By: Craig�osser, ity Manager y: Geoff Larkin,The Larkin Group
Inc.
Date Date
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EXHIBIT `A'
SERVICES TO BE PROVIDED
1. OVERVIEW
According to the city's Citizen Attitude Survey conducted in the fall of 2007, the number one
concern of Tigard citizens is traffic congestion. For years Tigard residents have expressed growing
impatience with increased congestion on Highway 99W, Scholls Ferry Rd., Hall Boulevard,
Greenburg Rd., Durham Rd., Walnut St., and many other thoroughfares. In response, one of the
City Council's goals for 2008 addresses this issue as follows:
1. Pursue opportunities to reduce traffic congestion in Tigard.
• Pursue immediate low-cost projects to improve traffic flow.
• Explore light rail on 99W.
• Promote an access control study of 99W.
• Continue the I-5/99W connector project.
• Continue state and regional advocacy for transportation improvements in Tigard.
2. OBJECTIVES
A. Monitor County, Regional, State, and Federal activity regarding transportation funding.
B. Advise Tigard on how to position itself to receive additional transportation funding.
C. Advise Tigard on how to win approval for High Capacity Transit (Light Rail) to serve the
City and beyond.
D. Alert the City when and where elected/ appointed officials are needed to represent the city
in meetings or hearings regarding transportation funding and issues.
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