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Lloyd D. Lindley, ASLA - Design Evaluation Team Member CITY OF TIGARD, OREGON PROFESSIONAL SERVICES CONTRACT FOR DESIGN EVALUATION TEAM MEMBER THIS AGREEMENT made and entered into this l f' day of June, 2002 by and between the CITY OF TIGARD, a municipal corporation of the State of Oregon, hereinafter called "City," and Lloyd D. Lindley, ASLA,,hereinafter called"Service.Provider." RECITALS TMC 18.620.090 B provides for appointment of Design Evaluation Team members to make recommendations on certain requests for land use adjustments in the Tigard Triangle, and City has need for the services of a provider with particular training, ability, knowledge, and experience possessed by Service Provider, and City has determined that Lloyd D. Lindley, ASLA, is qualified and capable of performing the professional services as City does hereinafter require, under those terms and conditions set forth: AGREEMENT: The parties agree as follows: 1. SERVICES TO BE PROVIDED: Service Provider shall serve as a member of the Design Evaluation Team and initiate services immediately upon receipt of City's notice to proceed, together with an executed copy of this Agreement. Service Provider agrees to complete work that is detailed below. a. The Service Provider agrees to receive from and examine available information, prepare written recommendations and conclusions in accord with adopted City plans and ordinances, and make recommendations that are clear, complete, internally consistent, and factually accurate. The Service Provider agrees to deliver one original or camera-ready copy of'each recommendation to the City. b. The Service Provider agrees to comply with all applicable requirements, including time limits of the design evaluation process. c. The Service Provider agrees that he/she will accept all requests for adjustment scheduled by the City, or notify the City has soon as practical prior to the meeting of his/her inability to attend the meeting. d. The Service Provider agrees to disqualify him/herself regarding any request if he/she has a conflict of interest with parties to that request, and to notify the City in writing as soon as practical prior to the meeting date of such disqualification. e. The Service Provider agrees to recommend an. available replacement Design Evaluation Team member subject to approval of the City Manager and the provisions of this Agreement whenever conflict of interest, conflicts of schedule, sickness, or other good cause occur. LoreenVACDADWERREEWSTOET Contract-Lindley 6-11-02.doc Page 1 2. EFFECTIVE DATE AND DURATION: This Agreement shall become effective upon the date of execution, and shall expire, unless otherwise terminated, 5 years after the date of execution. All work under this Agreement shall be completed prior to the expiration of this Agreement. 3. COMPENSATION: a. City agrees to pay Service Provider $110.00/hour for performance of those services described herein, which payment shall be based upon the following applicable terms: 1. The hourly rate for performance of services includes compensation for all expenses incurred by Service Provider, with the exception of expenses identified in 3.b. of this Agreement-as separately reimbursable. 2. Payment will be made in installments based on Service Provider's itemized invoice, subject to the approval of the Community Development Director, or designee, and not more frequently than monthly. Payment shall be made only for work actually completed as of the date of invoice. Invoice shall be itemized by case number and' by activity. Itemized items acceptable for payment are: Service Provider's labor, including time spent preparing for a meeting, visiting the sites for which requests for adjustments are made, conducting the meeting, and writing the decision. 3. Payment by City shall release City from any further obligation for payment to Service Provider, for services performed or expenses incurred as of the date of the invoice. Payment shall not be considered acceptance or approval of any work or waiver of any defects therein. b. City agrees to pay Service Provider the following amounts for the following direct expenses to the extent committed in the course of fulfilling the Design Evaluation Team member's duties under the Agreement. 1. Mileage at the rate of thirty-one cents ($.31) per mile. 2. Photocopying at the rate of ten cents ($.10) per page for in-house copies, and actual charges for out-of-house copies as billed. 3. Long distance telephone charges in the actual amount billed by the phone service. 4. Clerical services at a rate of forty-five dollars.($45.00) per hour. 5. Facsimiles at a rate of fifty cents ($.50) per page. c. City agrees to pay Service Provider for labor and direct expenses within 30 days after receipt ofthe itemized statement, except such amounts as the City disputes may be withheld pending settlement. Any undisputed charges not paid within 30 days are subject to interest of 1.5% per month (18%APR).. 4. OWNERSHIP OF WORK PRODUCT: City shall be the owner of and shall be entitled to possession of any and all work products of Service Provider which result from this Agreement, including any computations, plans, correspondence or pertinent data and information gathered by or computed by Service Provider LoreenVACDADMUERREEIMSTMET Contract-Lindley 6-11-02Aoc Page 2 prior to termination. of this Agreement by Service Provider 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 subcontractor, Service Provider shall be fully responsible for the acts or omissions of any sub- service providers and of all persons employed by them, and neither the approval by City of any sub-service provider,nor anything contained herein shall be deemed to create any contractual relation between the sub-service provider and City. 6. STATUS OF SERVICE PROVIDER AS INDEPENDENT SERVICE PROVIDER: Service Provider certifies that: a. The City's Community Development Director, or designee, shall be responsible for determining whether Service Provider's work project is satisfactory and consistent with this Agreement, but Service Provider is not subject to the direction and control of the City. Service Provider shall be an independent contractor for all purposes and shall be entitled .to no compensation other than the compensation provided for under Section 3 of this Agreement. b. Service Provider acknowledges that for all purposes related to this.Agreement, Service Provider is an independent contractor 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 taxes required by law. Any and all persons retained by Service Provider to provide services under this Agreement are employees of Service Provider and not of City. Service Provider acknowledges that it is not entitled to benefits of any kind to which a City employee is entitled and that it shall be solely responsible for workers compensation coverage for its employees and all other payments and taxes required by law. Furthermore, in the event that Service Provider 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 Service Provider under the terms of this Agreement, to the full extent of any benefits or other remuneration Service Provider 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 Service Provider or to a third party)as a result of said finding. c. The undersigned Service Provider 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 Service Provider, either directly or indirectly, in connection with the letting or performance of this Agreement, except as specifically declared in writing. d. If this payment is to be charged against.federal funds, Service Provider certifies that he/she is not currently employed by the Federal Government and the amount charged does not exceed his/her normal charge for the type of service provided. e. Service Provider 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. LoreeMACDADWERREEWSTOET Contract-Lindley 6-11-02.doc Page 3 f. Service Provider certifies that it currently has a City business tax receipt or will obtain one prior to delivering services under this Agreement. g. Service Provider shall furnish to the City its employer identification number, as designated by the Internal Revenue Service, or social security number, as the City deems applicable. h. Service Provider is not an officer, employee, or agent of the City as those terms are used in ORS 30.265. 7. INDEMNIFICATION: a. City has relied upon the professional ability and training of Service Provider as a material inducement to enter into this Agreement. Service Provider warrants that all its work will be performed in accordance with generally accepted professional practices and standards of skill and care ordinarily exercised by members of Service Provider's profession under similar conditions and circumstances as well as the requirements of applicable federal, state and local laws, it being understood that acceptance of a Service Provider's work by City shall not operate as a waiver or release. b. Claims for other than Professional Liability. Service Provider shall defend, save and hold harmless the, City of Tigard, its officers, agents, and employees from all claims, suits, or actions and all expenses incidental to the investigation and defense thereof, of whatsoever nature, including intentional acts resulting from or arising out of the activities of Service Provider or its sub-service providers, sub-consultants, agents or .employees under this Agreement. 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. c. Claims for Professional Liability. Should Service Provider be hired for skill as an Architect or Engineer, said Service Provider shall defend, save and hold harmless the City of Tigard, its officers, agents, and employees from all claims, suits, or actions and all expenses incidental to the investigation and defense thereof, arising out of the professional negligent acts, errors or omissions of Architect/Engineer or its sub-service providers, sub- consultants, agents or employees in performance of professional services under this Agreement. Any design work by Architect/Engineer Service Provider that results in a design of a facility that is not readily accessible to and usable by individuals with disabilities shall be considered a professionally negligent act, error or omission. d. As used in subsections b and c of this section, a claim for professional responsibility is a claim made against the City in which the City's alleged liability results directly or indirectly, in whole or in part, from the quality of the professional services provided by Architect/Engineer, regardless of the type of claim made against the City. A claim for other than professional responsibility is a claim made against the City in which the City's alleged liability results from an act or omission by Architect/Engineer unrelated to the quality of professional services provided by Arch itect/Engineer. 8. INSURANCE: Service Provider and its sub-service providers shall maintain insurance acceptable to City in full force and effect throughout the term of this Agreement. Such insurance shall cover all risks arising directly or indirectly out of Service Provider's activities or work hereunder, including the operations of its sub-service providers. Such insurance shall include provisions that such LoreenVACDADMWERREEWSTOET Contract-Lindley 6-11-02.doc Page 4 insurance is primary insurance with respect to the interests of City and that any other insurance maintained by City is excess and not contributory insurance with the insurance required hereunder. The policy or policies of insurance maintained by the Service Provider and its sub-service providers shall provide at least the following limits and coverages: a. Commercial General Liability Insurance Service Provider shall obtain, at Service Provider's expense, and keep in effect during the term of this Agreement, Comprehensive General Liability Insurance covering Bodily Injury and Property Damage on an 'occurrence" form (1996 ISO or equivalent). This coverage shall include Contractual. Liability insurance for the indemnity provided under this Agreement. The following insurance will be carried: Coverage Limit General Aggregate $1,000,000 Products-Completed Operations Aggregate 1,000,000 Personal &Advertising Injury 1,000,000 Each Occurrence 1,000,000 Fire Damage (Any one fire) 50,000 Medical Expense (Any one person) 5,000 b. Professional Liability Service Providers who provide Architect/Engineer services shall obtain, at Service Provider's expense, and keep in effect during the term of. this Agreement, Professional Liability Insurance covering any damages caused by an error, omission or any negligent acts. Combined single limit per occurrence shall not be less than $1,000,000, or the equivalent. Annual aggregate limit shall not be less than $1,000,000 and shall be on a "claims-made"form. c. Commercial Automobile Insurance Service Provider shall also obtain, at Service Provider's expense, and keep in effect during the term of the Agreement, Commercial Automobile Liability coverage on an "occurrence" form including coverage for all owned, hired, and non-owned vehicles. The Combined Single Limit per occurrence shall not be less than $1,000,000. d. Workers' Compensation Insurance The Service Provider, its sub-service providers, if any, and all employers providing work, labor or materials under this Agreement that are either subject employers under the Oregon Workers' Compensation Law and shall comply with ORS 656.017, which requires them to provide workers' compensation coverage that satisfies. Oregon law for all their subject workers or employers that are exempt under ORS 656.126. Out-of-state employers must provide Oregon workers' compensation coverage for their workers who work at a single location within Oregon for more than 30 days in a calendar year. Service Providers who perform work without the assistance or labor of any employee need. not obtain such coverage. This shall include Employer's Liability Insurance with coverage limits of not.less than $500,000 each accident. LoreenMACDADMWERREEIMSTOET Contract-Lindley6-11-02.doc Page 5 e. Additional Insured Provision The Commercial GeneralLiability Insurance and Commercial Automobile Insurance policies and other policies the City deems necessary shall include the City, its officers, directors, and employees as additional insureds with respect to this Agreement.. f. Notice of Cancellation There shall be no'cancellation,, material change, exhaustion.of aggregate limits or intent not to renew insurance coverage without 30 days written notice.to the City. Any failure to comply with this provision will not affect the insurance coverage,provided to the City. The 30 days notice of cancellation provision shall be physically endorsed on to the policy. g. Insurance Carrier Rating Coverages provided by the Service Provider must be underwritten by an insurance company deemed acceptable by the City. The City reserves the right to reject all or any insurance carrier(s)with an unacceptable financial rating. h. Certificates of Insurance As evidence of the insurance.coverage required by the Agreement, the Service Provider shall furnish a Certificate of Insurance to the City. No Agreement shall be effected until the required certificates have been received and approved by the City. The certificate will specify and document all provisions within this Agreement.-A renewal certificate will be sent to the above address 10 days prior to coverage expiration. i. Independent.Service Provider Status The service or services to be rendered under this Agreement are those of an independent Service Provider. Service Provider is not an officer, employee or agent of the City as those terms are used in ORS 30.265. i. Primary Coverage Clarification The parties agree that Service Provider's coverage shall be primary to the extent permitted by law. The parties further agree that other insurance maintained by the City is excess and not contributory insurance with the insurance required in this section. k. Cross-Liability Clause A cross-liability clause or separation of insureds clause will be included in all general liability, professional liability, pollution and errors and omissions policies required by this Agreement. Service Provider's insurance policy shall contain provisions that such policies shall not be canceled or their limits of liability reduced without thirty (30) days prior notice to City. A copy of each insurance policy, certified as a true copy by an authorized representative of the issuing insurance company, or at the discretion of City, inlieu thereof,a certificate in form satisfactory to City certifying to the issuance of such insurance shall be forwarded to: James N.P..Hendryx, Director of Community Development City of Tigard jimh@ci.tigard:or.us 13125 SW Hall.Blvd. 503`639-4171 Tigard,Oregon 97223 503-684-7297 Such policies or certificates must be delivered prior to commencement of the work. Loreen\I:\CDADM\JERREE\MST\DET.Contract-Lindley 6-11-02,doc Page 6 The procuring of such required insurance shall not be construed to limit Service Provider's liability hereunder. Notwithstanding said insurance, Service Provider shall be obligated for the total amount of any damage, injury, or loss caused by negligence or neglect connected with this Agreement. 9. METHOD AND PLACE OF GIVING NOTICE, SUBMITTING BILLS AND MAKING PAYMENTS. All notices, bills and payments shall be made,in writing and may be given by personal delivery, mail or 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 Business Phone: 503-639-4171 Ext. 2443 James N.P. Hendryx Business Fax: 503-684-7297 13125 SW Hall Blvd. Email Address:jimh@ci.tigard.or.us Tigard, Oregon 97223 SERVICE PROVIDER Lloyd D. Lindley, ASLA Business Phone: 503-224-9188 Landscape Architect Business Fax: 503-224-9149 620 SW Main St., Suite 710 Email Address: protractor@msn.com Portland, OR 97205 and when so addressed, shall be deemed given upon deposit in the United States mail, postage prepaid. 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 who 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: The City requires that services provided pursuant to this Agreement shall be provided to the City by a Service Provider that does not represent clients on matters contrary to City interests. Further, Service Provider 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 Service Provider 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, Service Provider shall consult with the appropriate City representative regarding the conflict. After-such consultation, the Service Provider shall have 40 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 12 of this Agreement. . LoreenMACDADWERREENS'RDET Contract-Lindley 6-11-02.doc Page 7 12. TERMINATION: At any time and without cause, City or Service Provider shall have the right in their sole discretion, to terminate this Agreement by giving forty (40) days written notice to the other party, except if the termination is initiated under Section 11 of this Agreement and then the City will give ten (10) days written notice to the Service Provider. The City shall pay Service Provider for services renderedto the date of termination. 13. ACCESS TO RECORDS: City shall have access to such books, documents, papers and records of Service Provider as are directly pertinent to this Agreement for the purpose of making audit, examination, excerpts and transcripts. 14. NON WAIVER: The failure of City to insist upon or enforce strict performance by Service Provider 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. 15. NON-DISCRIMINATION: Service Provider agrees to comply with all applicable requirements of federal and state civil rights and rehabilitation statues, rules, and regulations. Service Provider 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. 17. WARRANTIES: Service Provider agrees to use independent professional judgment in making recommendations consistently with the highest standard of Service Provider's profession. 18. ATTORNEY'S FEES: In case suit or action is instituted to enforce the provisions of this Agreement, 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. 19. 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. 20. COMPLIANCE'WITH APPLICABLE LAW: Service Provider shall comply with all federal, state, and local laws and ordinances applicable to the work under this Agreement, including those set forth in ORS 279.310 to 279.320. This agreement incorporates all provisions required to be in a contract of this type by ORS Chapter 279. LoreenMACDADWERREENSTOET Contract-Lindley 6-11-02.doc Page 8 21. 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 Agreement, this instrument shall control and nothing herein shall be considered as an acceptance of the said terms of said proposal conflicting herewith. 22. 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. 23. COMPLETE AGREEMENT: This Agreement constitutes the entire Agreement between the parties. No waiver, consent, modification, or change of terms of this Agreement shall bind either partyy 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. Service Provider, 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 Service Provider has executed_ this Agreement on the date hereinabove first written. CITY OF TIGARD 07, y: James N.P. Hendryx Date SERVICE PROVIDER 21Z o�S �Arch�itect") Date LoreenMACDADMWERREEWSMET Contract-Lindley 6-11-02.doc Page 9