GeoPacific Engineering Inc ~ C130013 Contract Number Z °J +J
CITY OF TIGARD,OREGON
PERSONAL SERVICES CONTRACT
FANNO CREEK TRAIL—MAIN STREET TO GRANT AVENUE
LIMITED SUBSURFACE EXPLORATION AND GEOTECHNICAL WALL DESIGN
THIS AGREEMENT made and entered into this 1"day of July, 2012 by and between the City of Tigard, a
municipal corporation of the State of Oregon, hereinafter called City, and GeoPacific Engineering, Inc.,
hereinafter called Engineer.
RECITALS
WHEREAS, the City's 2012-2013 fiscal year budget provides for services related to subsurface exploration and
geotechnical wall design along Fanno Creek Trail from Main Street to Grant Avenue;and
WHEREAS, City has need for the services of a company with a particular training, ability, knowledge, and
experience possessed by Engineer,and
WHEREAS, City has determined that Engineer 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
Engineer shall initiate services immediately upon receipt of City's notice to proceed together with an
executed copy of this Agreement. Engineer agrees to complete work that 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 December 31, 2012. All work under this Agreement shall be completed
prior to the expiration of this Agreement.
3. , COMPENSATION
The City agrees to pay Engineer in accordance with the fee schedule outlined in Exhibit A for
performance of those services described herein and in any subsequent agreements that arise from the
work under this Agreement. The total amount paid to the Engineer by the City shall not exceed Two
Thousand Four Hundred and No/100 Dollars ($2,400.00), based on hourly rates, if all tasks are
completed. Any and all payments made to the Engineer shall be based upon the following applicable
terms:
A. Payment by City to Engineer for performance of services under this Agreement includes all
expenses incurred by Engineer, with the exception of expenses, if any identified in this
Agreement as separately reimbursable.
B. Payment will be made in installments based on Engineer'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 Engineer, 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. Engineer shall make payments promptly,as due, to all persons supplying labor or materials for
the prosecution of this work.
E. Engineer 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. Engineer shall pay to the Department of Revenue all sums withheld from employees pursuant
to ORS 316.167.
G. If Engineer fails,neglects or refuses to make prompt payment of any claim for labor or services
furnished to Engineer 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 Engineer. The payment of the claim in this manner shall not relieve
Engineer or their surety from obligation with respect to any unpaid claims.
H. Engineer 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. Engineer 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 Engineer or all sums which Engineer agrees
to pay for such services and all moneys and sums which Engineer 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 Engineer
which result from this Agreement,including any computations,plans,correspondence or pertinent data
and information gathered by or computed by Engineer prior to termination of this Agreement by
Engineer 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,Engineer
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.
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6. STATUS OF ENGINEER AS INDEPENDENT ENGINEER
Engineer certifies that.
A. Engineer acknowledges that for all purposes related to this Agreement,Engineer is and shall be
deemed to be an independent Engineer 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 Engineer 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 Engineer under the terms of this Agreement, to the full extent of any
benefits or other remuneration Engineer 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 Engineer or to a
third party) as a result of said finding.
B. The undersigned Engineer 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 Engineer, 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, Engineer 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.
Engineer 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. Engineer certifies that it currently has a City business license or will obtain one prior to
delivering services under this Agreement
D. Engineer 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 Engineer as a material inducement to enter
into this Agreement. Engineer 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 Engineer's work by City shall not operate as a
waiver or release.
Engineer 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
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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.
8. INSURANCE
Engineer 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 Engineer's activities or work hereunder,including the operations of its subcontractors of any tier.
The policy or policies of insurance maintained by the Engineer and its subcontractor shall provide at
least the following limits and coverages:
A. Commercial General Liability Insurance
Engineer shall obtain, at Engineer'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 2,000,000
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
Engineer shall also obtain, at Engineer'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 Engineer, 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 Oregon workers' compensation coverage for their workers who work at a single
location within Oregon for more than 30 days in a calendar year. Engineers who perform work
without the assistance or labor of any employee need not obtain workers' compensation
coverage. All non-exempt employers shall provide Employer's Liability Insurance with
coverage limits of not less than$500,000 each accident.
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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. Insurance Carrier Rating
Coverages provided by the Engineer 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.
F. Certificates of Insurance
As evidence of the insurance coverage required by the contract, the Engineer 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.
G. Independent Engineer Status
The service or services to be rendered under this contract are those of an independent
Engineer. Engineer is not an officer, employee or agent of the City as those terms are used
in ORS 30.265.
H. Primary Coverage Clarification
The parties agree that Engineer'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.
I. 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.
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:
City of Tigard
Attn: Contracts and Purchasing Office
13125 SW Hall Blvd.
Tigard,Oregon 97223
Such policies or certificates must be delivered prior to commencement of the work. The procuring of
such required insurance shall not be construed to limit Engineer's liability hereunder. Notwithstanding
said insurance,Engineer 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
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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:
Crff OF TIGARD GEoPACiFIC ENGINEERING,INC.
Attn: Jeff Peck,Sr. Engineering Tech Attn: Scott Hardman
Address: 13125 SW Hall Boulevard Address: 14835 SW 72"a Avenue
Tigard, Oregon 97223 Portland, Oregon 97224
Phone: (503) 718-2466 Phone: (503) 598-8445
Fax: (503) 624-0752 Fax: (503) 941-9281
Email Address: ieffpgtigard-or.g_ov Email Address:
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
Engineer that does not represent clients on matters contrary to City interests. Further, Engineer 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 Engineer 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,Engineer shall consult with the appropriate City
representative regarding the conflict.
After such consultation, the Engineer 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 Engineer. If City terminates the contract pursuant to this paragraph, it
shall pay Engineer 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 Engineer, or at
such later date as may be established by City,under any of the following conditions:
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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 Engineer, its
subcontractors, agents, and employees to provide the services required by this
Agreement is for any reason denied,revoked,or not renewed.
4) If Engineer becomes insolvent, if voluntary or involuntary petition in bankruptcy is
filed by or against Engineer,if a receiver or trustee is appointed for Engineer,or if there
is an assignment for the benefit of creditors of Engineer.
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 Engineer,may terminate the
whole or any part of this Agreement:
1) If Engineer fails to provide services called for by this agreement within the time
specified herein or any extension thereof,or
2) If Engineer 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 Engineer 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 Engineer 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),Engineer 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 Engineer 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 Engineer. 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 Engineer as are directly
pertinent to this Agreement for the purpose of making audit,examination,excerpts and transcripts.
15. FORCE M=URE
Neither City nor Engineer 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
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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 Engineer 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
Engineer agrees to comply with all applicable requirements of federal and state civil rights and
rehabilitation statues, rules, and regulations. Engineer 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
Engineer 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's Project Manager for this project may authorize extra (and/or change) work. Failure of
Engineer 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 Engineer thereafter shall be
entitled to no compensation whatsoever for the performance of such work.
20. WARRANTIES
All work shall be guaranteed by Engineer for a period of one year after the date of final acceptance of
the work by the owner. Engineer 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 Engineer 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.
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23. COMPLIANCE WITH STATE AND FEDERAL LAWS/RULES
Engineer 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
Engineer 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.
Engineer 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 Engineer labor or
materials for the execution of the work provided by this order. Engineer must pay all contributions or
amounts due from Engineer to the Industrial Accident Fund incurred in the performance of this order.
Engineer shall not permit any lien or claim to be filed or prosecuted against Buyer or any subdivision of
City on account of any labor or material to be furnished. Engineer 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 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
Engineer 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
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injury, to the employees of such Engineer, of all sums which the Engineer agrees to pay for such services
and all moneys and sums which the Engineer collected or deducted from the wages of the employees
pursuant to any law,Engineer agreement for the purpose of providing or paying for such service.
34. 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.
Engineer, 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 Engineer has executed this Agreement on the date hereinabove first written.
CITY OF TIGARD GEOPAC IC,CG E G, C,
By: M By:Authorized Agent of Engineer
Date Date
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EXHIBIT A
SERVICES TO BE PROVIDED
1. SCOPE OF WORK
A. Field Exploration
Engineer will log and sample three (3) hand auger borings and perform field tests of soil
strength. The borings shall be drilled along the proposed wall alignment to evaluate subgrade
soil strength and erosion potential.
B. Engineering Analysis and Report
Engineer shall compile field, laboratory, and office data into a geotechnical report presenting
Engineer's conclusions and recommendations regarding the following issues:
1) Presence and effect of existing fill and/or other existing compressible soils observed during
explorations;
2) Estimate of scour depth under the design stream flood condition,based on velocity and flow
estimates provided by others,vegetation and soil characteristics. The wall will be embedded
below the estimated scour depth;
3) Geotechnical design for the Ultra Block wall,including analysis of wall cross sections at two
locations, one where the wall will retain the existing berm and the other where the wall will
be free-standing. The report shall contain typical cross sectional wall schematics and
geotechnical recommendations for wall construction, including recommendations for
grouting and/or water stop installation to make the wall more water tight.
Four copies of the Engineer's report shall be submitted to the City.
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