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Winterbrook Planning ~ C110004 CITY OF TIGARD,OREGON AMENDMENT TO PERSONAL SERVICES CONTRACT TREE GROVE CONSULTANT SERVICES AMENDMENT #3 The Agreement between the City of Tigard, a municipal corporation of the State of Oregon, hereinafter called City, and Winterbrook Planning, hereinafter referred to as Contractor, entered into on the 8" day of June, 2010,is hereby amended as follows: 1. COMPENSATION Add —The City agrees to pay the Contractor up to an additional Three Thousand and No/100 dollars ($3,000.00) for the additional sen=ices provided by the Contractor under Amendment #3 to the original contract. The total amount of the contract, including Amendments 1, 2 & 3, shall not exceed Seventy- Three Thousand and No/100 dollars ($73,000.00.) All other terms and conditions of the original contract's Compensation clause shall remain the same and in effect. EXHIBIT A—SERVICES TO BE PROVIDED Add - Winterbrook Planning will provide additional services for the Tree Grove Preservation Program by attending (1 person) the Open House to be held on December 8, 2011. Winterbrook Planning will be available to provide information about or answer questions regarding the Tree Grove Preservation Program. Add- Winterbrook Planning will provide additional services for the Tree Grove Preservation Program by completing the requested amendments to the completed ESEE Analysis and completing an Executive Summary for the document. The materials will be reviewed and approved by the City of Tigard project manager. IN WITNESS WHEREOF, City has caused this Amendment to be executed by its duly authorized undersigned officer and Contractor has executed this Amendment upon signature and date listed below. W"rcat4u<04 10LAN.VW4 ( P" OF Ttyh 6irr�4e� Sign e Signature / Printed Name Printed Name 60 73 Zrv� l'z�Z�ll Date Date CITY OF TIGARD,OREGON AMENDMENT TO CONTRACT TREE GROVE CONSULTANT SERVICES AMENDMENT #2 The Agreement between the City of Tigard, a municipal corporation of the State of Oregon, hereinafter called City, and Winterbrook Planning, hereinafter referred to as Contractor, entered into on the S" day of June, 2010,is hereby amended as follows: EFFECTIVE DATE AND DURATION This Agreement shall become effective upon the date of execution, and shall expire, unless otherwise terminated or extended, on June 30, 2012. All work under this Agreement shall be completed prior to the expiration of this Agreement. IN WITNESS WHEREOF, City has caused this Amendment to be executed by its duly authorized undersigned officer and Contractor has executed this Amendment upon signature and date listed below. CITY OFT WINTERBROOK P ING Signature Printed Na Printed Name Date Date CITY OF TIGARD,OREGON AMENDMENT TO PERSONAL SERVICES CONTRACT TREE GROVE CONSULTANT SERVICES AMENDMENT #1 The Agreement between the City of Tigard, a municipal corporation of the State of Oregon, hereinafter called City, and Winterbrook Planning, hereinafter referred to as Contractor, entered into on the 8"' day of June,2010, is hereby amended as follows: 1. COMPENSATION Add — The City agrees to pay the Contractor up to an additional Five Thousand and N0 /100 dollars ($5,000.00) for the additional services provided by the Contractor under Amendment #1 to the original contract. The total amount of the contract, including Amendment 1, shall not exceed Seventy Thousand and No/100 dollars ($70,000.00.) All other terms and conditions of the original contract's Compensation clause shall remain the same and in effect. EXHIBIT A—SERVICES TO BE PROVIDED Add- Winterbrook Planning will provide additional services for the Tree Grove Preservation Program Open House to be held on February 17, 2011. Winterbrook Planning will produce up to four development plan drawings depicting various options for a site containing an inventoried tree grove. The City of Tigard project manager will approve the site to be used in the drawings. The drawings will be used as visual aides to help the community to consider alternatives. The four drawings will depict: 1. The site developed under current community development code regulations 2. The site developed with the tree grove exempted from minimum density requirements 3. The site developed with 40% retention of the tree grove and 100% density transferred to the j developable portion of the site j 4. The site developed with 100% retention of the tree grove and 100% density transferred to the Ij developable portion of the site The materials will be reviewed and approved by the City of Tigard project manager. i IN WITNESS WHEREOF, City has caused this Amendment to be executed by its duly authorized undersigned officer and Contractor has executed this Amendment upon signature and date listed below. CITY OF TIGARD WINTERBROOK PLANNING Signature Si Printed Name Printed Name Z/2�/ / e Date Date —limp June 17, 2010 Doreen Laughlin Senior Administrative Specialist Community Development City of Tigard 13125 SW Hall Boulevard Tigard, OR 97223 RE: Personal Services Contract 1 Tree Grove Consultant Services Dear Doreen: Enclosed are 3 original copies of the Personal Services Contract for Tree Grove Consultant Services between the City of Tigard and Winterbrook Planning. After agreement between Greg Winterowd (Winterbrook Planning), Joseph Barrett (City of Tigard, and Todd Prager (City of Tigard),Article 7 of the contract was amended by striking through some of the text in the Article and adding Attachment A: Modified Text Related to Indemnification. Please initial page 3 and Attachment A, and return one copy to my attention. Also enclosed is a completed W-9 form. Insurance certificates have been requested and will be sent directly to Darren Wyss per the contract's provisions. Please let me know if you have questions about the changes to the contract. In the meantime,we look forward to working with you! Sincerely, Jack Harvey Office Manager Winterbrook Planning 310 SW f=ourth Ave. Suite lfo0 Portland,Oregon 97204 503.827.4422 voice 503.827.+350 fax www.winter6rookplanning.com COMMUNITY ■ RESOURCE ■ PLANNING CITY OF TIGARD,OREGON CIA PERSONAL SERVICES CONTRACT TREE GROVE CONSULTANT SERVICES THIS AGREEMENT made and entered into this 8th day of June,2010 by and between the City of Tigard, a municipal corporation of the State of Oregon, hereinafter called City, and Winterbrook Planning, hereinafter called Contractor. RECITALS 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, THEREFORE the Parties 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 that is detailed in Exhibit A and by this reference made a part hereof. 2. EFFECTIVE DATE AND DURATION This Agreement shall become effective upon the date of execution, and shall expire, unless otherwise terminated or extended, on June 8, 2011 or June 30, 2011, whichever comes first. All work under this Agreement shall be completed prior to the expiration of this Agreement. 3. COMPENSATION City agrees to pay Contractor not to exceed sixty-five thousand ($65,000) for performance of those services described herein,which payment 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. Payment will be made in installments 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 invoice. 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 persons supplying labor or materials for the prosecution of this work. City of Tigard Personal Service Agreement (Title) Page I of 16 . r r E. Contractor shall not permit any lien 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 furnished 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 fiends due or to become due the Contractor. The payment of the claim in this ipanner shall not relieve Contractor or their surety from obligation with respect to any unpaid claims. H. Contractor shall pay employees at least time and a half pay for all overtime worked in excess of 40 hours in any one week except for individuals under the contract who are excluded under ORS 653.010 to 653.261 or under 29 USC sections 201 to 209 from receiving overtime. I. 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 employees of Contractor or all sums which Contractor agrees to pay for such services and all moneys and sums which Contractor collected or deducted from the wages of employees pursuant to any law, contract or agreement for the purpose of providing or paying for such service. J. The City certifies that sufficient funds are available and authorized for expenditure to finance costs of this contract. 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. ASSIGNMENTMELEGATION 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. City of Tigard Personal Service Agreement (Title) Page 2 of 16 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 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 this Agreement,except as specifically declared in writing. If this payment is to be charged against Federal funds, Contractor certifies that he/she is not currently employed by the Federal Government and the amount charged does not exceed his 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. ` t,� tractor agrees to indemnify efend the City, its officers, agents and employees and hold �k . , tem harmless from any an liability, causes of action, claims, losses, damages,judgments or other costs or expens cluding attorney's fees and witness costs and (at both trial and appeal level, whether or a trial or appeal ever takes place) that may be asserted by any person or entity which in any ay arise frons, during or in connection with the performance of the work described in City of Tigard Personal Service Agreement (Title) Page 3 of 16 this contract, except liability arising out o e sole negligence of the City and its employees. Such indemnification shall also cover c s brought against the City under state or federal worker's compensation laws. If any ct of this indemnity shall be found to be illegal or invalid for any reason whatsoeve�sucigality or invalidity shall not affect the validity of the remainder of this indemnification. S. INSURANCE Contractor and its subcontractors shall maintain insurance acceptable to City in full force and effect throughout the term of this contract. Such insurance shall cover all risks arising directly or indirectly out of, Contractor's activities or work hereunder, including the operations of its subcontractors of any tier. The policy or policies of insurance maintained by the Contractor and its subcontractor shall provide at least the following limits and coverages: A. Commercial General Liability Insurance Contractor shall obtain, at contractor's expense, and keep in effect during the term of this contract, 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 contract. 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. Commercial Automobile Insurance Contractor shall also obtain, at contractor's expense, and keep in effect during the term of the contract, Commercial Automobile Liability coverage including coverage for all owned, hired, and non-owned vehicles. The Combined Single Limit per occurrence shall not be less than$1,000,000. C. Workers' Compensation Insurance The contractor, its Subcontractors, if any, and all employers providing work, labor, or materials under this Contract that are subject employers under the Oregon Workers' Compensation Law shall comply with ORS 656.017, which requires them to provide workers'compensation coverage that satisfies Oregon law for all their subject workers. Out- of-state employers must provide Qregon workers' compensation coverage for their workers who work at a single location within Oregon for more than 30 days in a calendar year. Contractors who perform work without the assistance or labor of any employee need not obtain workers' compensation coverage. All nonexempt employers shall provide Employer's Liability Insurance with coverage limits of not less than$500,000 each accident. City of Tigard Personal Service Agreement (Title) Page 4 of 16 D. Additional Insured Provision The Commercial General Liability 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 contract. E. 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. F. Insurance Carrier Rating Coverages provided by the Contractor 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. G. Certificates of Insurance As evidence of the insurance coverage required by the contract, the Contractor shall furnish a Certificate of Insurance to the City. No contract 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 contract. A renewal certificate will be sent to the above address 10 days prior to coverage expiration. H. Independent Contractor Status The service or services to be rendered under this contract are those of an independent contractor. Contractor is not an officer, employee or agent of the City as those terms are used in ORS 30.265. 1. Primary Coverage Clarification The parties agree that Contractor'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. J. 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 contract. Contractor'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, in lieu thereof, a certificate in form satisfactory to City certifying to the issuance of such insurance shall be forwarded to: Darren Wyss, Senior Planner City of Tigard Business Phone: 503-639-4171,Ext. 2442 13125 SW Hall Blvd. Business Fax: 503-718-2748 Tigard, Oregon 97223 Email Address: Barren@ci.tigard.or.us Such policies or certificates must be delivered prior to commencement of the work. City of Tigard Personal Service Agreement (Title) Page 5 of 16 The procuring of such required insurance shall not be construed to limit contractor's liability hereunder. Notwithstanding said insurance, Contractor shall be obligated for the total amount of any damage, injury, or loss caused by negligence or neglect connected with this contract. 9. METHOD &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 Contractor City of Tigard -- Compn :.,.W,,_in.-t.,e..r.brookPlannin g Attn: Darren Wyss, Senior Planner Attn: Gregory Winterowd 13125 SW Hall Blvd.,Tigard, Oregon 97223 Address: 310 SW 4 Ave., Suite 1100, Portland,Oregon 97204 Phone: 503-639-4171 ext. 2442 Phone: 503-827-4422 Fax: 503-718-2748 Fax: 503-827-4350 Email Address: darren@tigard-or.gov Email Address: greg@winterbrookplanning.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 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 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. f� After such consultation, the Contractor shall have (# of days numerical form) 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. City of Tigard Personal Service Agreement (Title) Page 6 of 16 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. 13. TERMINATION WITH CAUSE A. City may terminate this Agreement effective upon delivery 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 this 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. 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 this 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 this Agreement as the services satisfactorily rendered by Contractor bear to the total services otherwise required to be City of Tigard Personal Service Agreement (Title) Page 7 of 16 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 MAJEURE 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, epidemic, 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 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 Senior Planner, Darren Wyss may authorize extra (and/or change) 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 City of Tigard Personal Service Agreement (Title) Page 8 of 16 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 parry 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 applicable 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 subcontractors and income tax withholding contained in ORS Chapter 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 lien or claim to be filed or prosecuted against Buyer or any subdivision City of Tigard Personal Service Agreement (Title) Page 9 of 16 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 cases 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 QRS 279A.055,the labor shall be paid at least time and a half for all overtime in excess of eight (S) 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 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 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 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 IGARb By: Au 6rized Ny staff person letting contract Date CONTRACTOR By: tra r s me Date City of Tigard Personal Service Agreement (Title) Page 10 of 16 EXHIBIT A SERVICEs To BE PROVIDED Task 1: Project Management Jun. 2010-Apr. 2011 (approx. 99 hrs.) Objective: Provide effective management that coordinates project tasks, schedules and budgets to meet City objectives efficiently. Consultant shall provide effective project coordination, direction, and management to ensure that there is a clear understanding of roles, responsibilities, schedule, scope, and budget to project team members. Project coordination includes holding regular project team meetings to review ongoing activities, resolve technical issues, identify additional needs and expedite the decision making process. It is anticipated that up to eight meetings with City staff, Planning Commission, and/or Council will be required. Consultant shall develop a plan describing how the project team will adapt to accommodate changes in scope including the ability to increase capacity and adapt to specific technical requirements that may arise. City_Sta ff Role: The City's Project Manager will have the following roles in Task 1: • 1 Maintain bi-weekly contact with the Winterbrook project manager; • Approve changes to the work program, monitor performance and authorize monthly invoices; and • Be directly responsible for working with City boards and commissions, building support within the City organization, approving contacts with the consultant team, and assigning work to other City staff. • City GIS staff will play a crucial role in this project----especially in regards to the Tree Grove Inventory. Consultant Deliverables: Consultant shall deliver: • Project Work Plan including scope of work, responsible staff, schedule, meetings, budget, and QA/QC protocol • Coordination with all sub-consultants • Project meeting notes • Monthly invoices • Bi-weekly progress reports via email with a brief narrative and chart that present the overall project status in terms of work completed, work remaining, budget, schedule, and estimated cost to complete. Task 2: Existing Tree Grove/GIS Data Review Jun. 2010-Jul. 2010 (approx. 52 hrs.) Objective: Review existing Tree Grove/GIS data to be used as the basis for the tree grove inventory. Coordinate with City to identify the size,number, and location of tree groves to be inventoried. Recommend adjustments to the inventory to ensure the scope of the inventory is consistent with the budget. City of Tigard Tree Grove Consultant Services May 12,2010 Winterbrook Planning Page 11 Consultant shall review City's data for accuracy and completeness for the purposes of identifying the size,number, and location of tree groves to be inventoried. The available data for identifying tree groves is in GIS format and was created by Metro using Feature Analyst software on aerial photos of Tigard. Several analyses have been performed using this data including the number, location, size, ownership, and zoning of tree groves throughout the City. Also available is a field inventory and assessment performed by a consultant in 1994 and updated by the City in 2007 of all tree groves over 5 acres in size. Consultant shall assess the accuracy of the GIS and other available field inventory work. City shall provide the following resources: 1. Aerial photographs-- 1996-2008 in jpg 2. GIS Metro and City land use data 3. City of Tigard Forested Natural Areas Inventory and Assessment, 1994 4. City of Tigard Forested Natural Areas Inventory and Assessment Update, 2007 City StaffRole: City staff will have the following roles in Task 2: • The City PM will work with the Winterbrook PM and Inventory Task Manager to agree on criteria for screening the 7,231 tree clusters down to a manageable number to be considered in the field inventory. • City GIS staff will be asked to assist in the screening process by applying criteria to the existing inventory of sites of one-half acre or more. • City GIS staff will be asked to prepare base maps for use in conducting field inventories during the summer and early fall. • Technical memo with identification and analysis of existing tree groves and recommendations for efficiently collecting the data necessary to complete an inventory within budget and time constraints. • Base maps for conducting field inventories (City GIS). Consultant Deliverables: Consultant shall deliver an electronic copy of a technical memo with identification and analysis of existing tree groves and recommendations for efficiently collecting the data necessary to complete an inventory within budget and time constraints. Task 3: Tree Grove Inventory Jun.'2010-Nov. 2010 (approx. 232 hrs.) Objective: Complete an inventory and analysis that complies with statewide planning Goal 5 rule procedures of all tree groves identified during the data review as necessitating further investigation. Provide a written summary of inventory results. For those tree groves identified by the City as necessitating further investigation, Consultant shall develop a standardized methodology for completing an objective inventory, analysis, and ranking based on their Goal 5 functions including but not limited to quality, quantity, and location attributes. The methodology may include a combination of aerial photo interpretation and ground surveys depending in part on the anticipated level of regulation that will be applied by the City. City ot I igar ree Urove Consultant Services may T2, 201u Winterbrook Planning Page 12 CLtE Sta Role: City staff will have the following roles in Task 3: • The City PM will be asked to provide mail notification to property owners that their property may be subject to a Goal 5 tree grove inventory, and requesting permission to access the property. • The City PM will be a point of contact from property owners regarding the Goal 5 process. • The City PM will work with the Winterbrook PM and Inventory TM to review the draft inventory report and significance determination. • City GIS staff will be asked to prepare final maps for significant Goal 5 resource sites. Consultant Deliverables: Consultant shall deliver an electronic copy of a technical memo with maps including the following information: • Identification of tree groves inventoried within the study area. • Description of methodology used to objectively inventory, analyze, and rank tree groves. Include worksheets used to record Goal 5 functions including but not limited to quality, quantity, and location attributes. • Table listing tree groves that can be easily cross referenced to maps. • Table ranking tree groves based on their Goal 5 functions. • Recommendations on which tree groves should be adopted by the City as significant resource sites based on their Goal 5 functions. Task 4: ESEE Analysis and ESEE Consequences Report Sep. 2010-Jan. 2011 (approx. 92 hrs.) Objective: As required by statewide planning Goal 5 rules, analyze the economic, social, environmental, and energy (ESEE) consequences that could result from a decision to allow, limit, or prohibit a conflicting use. Include in the ESEE analysis and consequences report: • Identification of conflicting uses that exist or could occur in each significant resource site including an examination of land uses allowed outright or conditionally within the zones applied to the resource sites. • Determination of the impact area defining the geographic limits within which to conduct an ESEE analysis for each significant resource site with allowed, conflicting uses. • Analysis of the ESEE consequences that could result from decisions to allow, limit, or prohibit conflicting uses for each significant resource site. The ESEE analysis must consider any applicable statewide goal or acknowledged plan requirements and be in a format that could easily be adopted as part of the comprehensive plan or as a land use regulation. City of Tigard Tree Grove Consultant Services May 12,2010 Winterbrook Planning Page 13 City&a Role: City staff will have the following roles in Task 4: • The City PM must work closely with the Winterbrook PM to make sure that conflicting uses are identified based on City zoning, and that tree grove impact areas are appropriately mapped. • City GIS staff will be asked to provide maps overlaying existing zoning districts—and protected riparian corridors---with significant tree grove sites. Land area determinations will be important to assess potential impacts on the buildable land supply. • City staff and the Tree Board will be asked to review the draft policy outline (limited protection program)prior to considering the consequences of this program in the ESEE analysis. Consultant Deliverables: Consultant shall deliver an electronic copy of the ESEE analysis and consequences report with maps including the following information: • Identification of conflicting uses that exist or could occur in each significant resource site including an examination of land uses allowed outright or conditionally within the zones applied to the resource sites. • Determination of the impact area defining the geographic limits within which to conduct an ESEE analysis for each significant resource site with allowed, conflicting uses. • Analysis of the ESEE consequences that could result from decisions to allow, limit, or prohibit conflicting uses for each significant resource site. • The ESEE analysis must consider any applicable statewide goal or acknowledged plan requirements and be in a format that could easily be adopted as part of the comprehensive plan or as a land use regulation. Task 5: Program to Achieve Goal 5 Oct. 2010-Feb. 2011 (approx. 102 hrs.) Objectives: Recommend to the City whether to allow, limit, or prohibit identified conflicting uses for significant resource sites. These recommendations shall be based upon and supported by the ESEE analysis, Comprehensive Plan, and Council/community preferences documented in the Urban Forestry Master Pian and public forums. Recommendations shall identify conflicting uses that should be allowed and the specific standards or limitations that should apply to the allowed uses. Recommendations shall include potential amendments to the Comprehensive Plan and/or land use regulations and include a combination of clear and objective standards as well as discretionary standards. Alternative recommendations such as property acquisition, conservation easements, and incentive programs shall be provided by Consultant if appropriate. After considering Consultant recommendations, the City shall determine whether to allow, limit, or prohibit identified conflicting uses for significant resource sites. The City's decisions shall then be documented in the final ESEE analysis and consequences report by Consultant. The City will complete the implementation of Comprehensive Plan and/.or land use amendments as well as acquisition and incentive programs for significant resource sites. City of Tigard Tree Grove Consultant Services May 12,2010 Winterbrook Planning Page 14 City Staff Role: City staff will have the following roles in Task 5: • Ensure that draft regulatory and incentive programs are a "good fit" for Tigard. • City GIS staff will participate in editing and finalizing maps. Consultant Deliverables: Consultant shall deliver an electronic copy of a report including the following information: • Recommendations to the City whether to allow, limit, or prohibit identified conflicting uses for significant resource sites supported by the ESEE analysis, Comprehensive Plan, and Council/community preferences documented in the Urban Forestry Master Plan. • Recommendations to the City that identify conflicting uses that should be allowed and the specific standards or limitations that should apply to the allowed uses. • Recommended amendments to the Comprehensive Plan and/or land use regulations that include a combination of clear and objective standards as well as discretionary standards. • Alternative recommendations such-as property acquisition, conservation easements, and incentive programs. Consultant shall deliver an electronic copy of the revised ESEE analysis and consequences report with maps documenting the City's decision whether to allow, limit, or prohibit identified conflicting uses for significant resource sites. Task 6: Public Involvement Jun. 2010-Mar. 2011 (approx. 102 hrs.) Objectives: In partnership with the City,provide timely notice to affected landowners and opportunities for citizen involvement during the inventory and ESEE process as required by statewide planning Goal 5 rules. In partnership with the City, comply with the City's acknowledged citizen involvement program, with statewide goal requirements for citizen involvement and coordination, and with other applicable procedures in statutes, rules, or local ordinances when conducting landowner outreach. Host at least one public open house in partnership with the City with posters, maps, and other outreach materials explaining the Goal 5 process and the functions and values of urban tree groves, so that citizens can provide meaningful input on regulatory and non-regulatory options for preservation. Summarize input received at open houses to assist the City's decision making process. The consultant shall also recommend an approach for working with Metro, County, and State agency staff in conducting Tasks 3- 5. City&a Role: City staff will have the following roles in Task 6: • Participate in the development of an effective citizen and agency program; • City GIS staff will assist in determining who should vet public notice (including owners of tree grove properties and those within the impact areas of potentially significant tree grove sites); • Help to organize and staff the two proposed open houses; • Help to document public input for review by appointed and elected decision-makers. Consultant Deliverables: In partnership with the City, consultant shall deliver: • Notice to affected landowners and opportunities for citizen involvement during the inventory and City of Tigard Tree Grove Consultant Services May 12,2010 Winterbrook Planning Page 15 t ESEE process as required by statewide planning Goal 5. • Knowledgeable staff to answer questions and record input from open houses and other forums. • Outreach materials such as posters, maps, and handouts for open houses and other forums. • Recommendations for an approach for working with Metro, County, and State agency staff in conducting Tasks 3-5. • An electronic copy of a report summarizing public input, and recommendations for the City's consideration during its decision making processes to ensure full consideration of landowner, citizen, and other agency needs and requirements. City of Tigard Tree Grove Consultant Services May 12,2010 Winterbrook Planning Page 16 Attachment A Modified Text Related to Indemnification CONTRACTOR shall indemnify and hold harmless City, its officers, agents and employees from and against all claims, damages, losses, and expenses including but not limited to attorneys' fees arising out of or resulting from the performance of the work, provided that such claim, damage, loss or expense (a) is attributable to bodily injury, sickness, disease or death and (b) is caused in whole or part by any negligent act or omission of CONTRACTOR, any Subcontractor, anyone directly or indirectly employed by any of them or anyone for whose acts any of them may be liable, regardless of whether or not it is caused in part by a party indemnified hereunder.