Grant Avenue - St. Anthony Catholic Church AGREEMENT
BETWEEN: City of Tigard ("City")
AND: St. Anthony Catholic Church, Tigard, Oregon ("St. Anthony's")
AND: Westlake Consultants, Inc. ("Westlake")
AND: G.V.S. Contracting, Inc. ("GVS")
DATED: February 22, 2010
RECITALS
A. A crosswalk and speed hump that did not satisfy applicable standards was
previously constructed on Grant Avenue adjacent to St. Anthony's Parish. St. Anthony's,
Westlake, and the City agreed that the previously constructed crosswalk and speed bump would
be removed and re-constructed and that additional work would be performed (together, the
"Work"), all in accordance with applicable standards.
B. The Work included the removal of a portion of the adjacent sidewalks and
construction of new sidewalks, sidewalk ramps, tactile strips, new markings, and other related
and incidental work. St Anthony's contracted with GVS for the performance of the Work.
C. After commencement of the Work and before completion of the Work, a property
damage claim ("Claim") was made by a third party and some of the parties agreed to contribute
money to resolve the Claim. The Claim has been resolved by the City and the parties wish to
account for and finally resolve money contributions agreed to among the parties to this
Agreement, through a division of the payment to GVS for the Work.
D. GVS completed the Work and billed St. Anthony's for the Work. St. Anthony's,
Westlake, and the City agreed to pay the amounts expressed in paragraph 1 below to fully
resolve payment for the Work and the Claim and GVS agreed to accept such payment as
payment in full for the Work. GVS agreed to accept such payment from each of the parties
separately or in any combination.
AGREEMENT
NOW THEREFORE, in consideration of the terms, covenants, and conditions expressed
in this Agreement to be kept and performed by the parties to this Agreement, and for other good
and valuable consideration, the receipt, adequacy, and sufficiency of which is hereby
acknowledged, and based on the foregoing recitals which each party acknowledges to be true,
and which are hereby incorporated into this Agreement, the parties mutually agree as follows:
Page I of 4—AGREEMENT 50014-36792 FOn Ap 26,9 Anthony(iVS Wesllake AK doc API)4 26 2010
1. Payment.
1.1 Payment Amounts. The parties agree to pay the following amounts (in total,
the "Payment Amount"; individually, each party's "Payment Share"):
City: $2,212
Westlake: $5,932
St. Anthony's $1,126
Total $9,270
1.2 The City and Westlake agree to pay their Payment Share directly to GVS.
When the City and/or Westlake pay its Payment Share directly to GVS, it will notify St.
Anthony's of such payment in writing and such payment will relieve and discharge the party that
made the payment from any obligation to pay St. Anthony's the above-described amounts to the
extent of the payment.
1.3 GVS agrees to accept payment directly from the City and Westlake to
discharge St. Anthony's obligation to pay the Payment Amount under St. Anthony's agreement
with GVS for the Work. Should the City or Westlake fail to pay GVS on or before the expiration
of 14 days from the date of this Agreement, interest will accrue on the late payment amount at
the rate of 9 percent per annum.
2. Release. Upon receipt of the Payment Amount and any applicable interest, if any,
in accordance with paragraph 1 above, the parties to this Agreement release one another and their
p g p
respective officers, directors, shareholders and employees, members, representatives,
constituents, agents, laborers, heirs and assigns, and predecessors in interest, from any claims
they have or may have arising out of or related in any way to the Work and Claim, including, but
not limited to, any and all claims, demands, causes of action, actions, rights, liabilities, contract
obligations, damages, attorney fees, costs, interest, torts, suits, debts, sums of money,
accountings, reckonings, bills, covenants, controversies, agreements, promises, variances,
trespasses, set-offs, and executions whatsoever, at law or in equity, known or unknown, or based
upon misrepresentation or mistake, which either party now owns or holds, or at any time before
owned or held, or may in the future own or hold, against one another.
3. Warranty Claims, Accident Claims and Latent Defect Claims.
Notwithstanding the provisions of paragraph 2 of this Agreement, nothing in this Agreement
shall be construed to: (1) release GVS from any remaining warranty obligations under its
agreement with St. Anthony's for the Work; or (2) release any party from any common law or
contractual contribution or indemnity obligation to any other party for(a) latent defects in that
party's work, or (b) liability for damages arising out of death or bodily injury to persons or
damage to property occurring on or about the location where the Work was performed caused in
whole or in part by the negligence of that party or those for whom the party in question is legally
responsible.
4. Payment Warranty. GVS hereby warrants and represents that all labor, services,
work, materials and equipment performed, furnished or utilized in connection with the Work
have been paid for in full including all applicable duties and taxes, including sales, use and
Page 2 of 4—AGREEMENT 50014-36792 FCIn Ap 26 St Anthony GVS Westlake Ag.doc.A1'11 4 26-2010
payroll taxes, if any, applicable to the labor, services, work, materials and equipment performed,
furnished or utilized by or for GVS. GVS further represents and warrants that owner of the
completed Work has good title to all materials and equipment furnished or utilized in connection
with the Work and that there are no liens, encumbrances or security interests against such
materials or equipment.
5. Entire Agreement. This Agreement sets forth the entire understanding of the
parties with respect to the subject matter of this Agreement and supersedes any and all prior
understandings, agreements, or representations, whether written or oral, between the parties with
respect to such subject matter.
6. Waiver. A provision of this Agreement may be waived only by a written
instrument created by the party waiving compliance. No waiver of any provision of this
Agreement shall constitute a waiver of any other provision. Failure to enforce any provision of
this Agreement shall not operate as a waiver of such provision or of any other provision.
7. Severability. If any provision of this Agreement is determined to be invalid or
unenforceable in any respect for any reason, the validity and enforceability of the remaining
provisions of this Agreement shall be unaffected and shall remain valid and fully enforceable.
8. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Oregon.
9. Voluntary Agreement. The parties represent and agree that each fully
understands its right to discuss all aspects of this Agreement with its attorney, and each has
voluntarily entered into this Agreement freely of its own will and without coercion.
10. Successors and Assigns. This Agreement shall inure to the benefit of and shall
be binding upon each of the parties and their successors, assigns, personal representatives, heirs,
and beneficiaries, as the case may be.
11. Form. The parties acknowledge that had an opportunity to offer modifications to
the Agreement, and that they approve of the form of the Agreement.
12. Attorney Fees. If any action or other proceeding shall be instituted relating to
any term(s) or condition(s) of this Agreement, the prevailing party shall be entitled to recover
from the other party and the other party agrees to pay the prevailing party, in addition to costs
and disbursements allowed by law, such sum as the arbitrator or judge may adjudge reasonable
attorney fees in such action or other proceeding, and in any appeal of the same.
13. No Acceptance of Liability. Any acceptance of this Agreement or payment
made under this Agreement is not an acceptance or acknowledgement of liability or
responsibility for any act or omission by or for any of the parties to this Agreement.
Page 3 of 4—AGREEMENT 50014-36792 FC1n Ap 26 St Anthony GVS Westlake Ag.doc APD 4 26 2010
14. Counterparts. This Agreement may be executed in counterparts, each of which,
when taken together, shall constitute fully executed originals. Facsimile and e-mail (scanned)
signatures shall operate as original signatures with respect to this Agreement.
CITY OF TIGARD ST. ANTHONY CATHOLIC CHURCH,
TIGARD, OREGON
Signature:
Signature:
Print: ore.C__1rN
Print:
Title: e"C�. —C3:tjd' CA-,, l..�p�r
Title: 4G�S
Date: q—ag—/d �_
Date: a?' o
WESTLAKE CONSULTANTS, INC. G.V.S. CONTRACTING, INC.
Signature Si nature:W
g g
11'�LQ_�_'l
Print:
Title: Title: Ce S �y�--
Date: "-) Date: P�'21 —\ri
Page 4 of 4—AGREEMENT 50014-36792 F Cln Ap 26 St Anthony GVS Westlake Ag.doc APD 4 26 2010