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John L. Jersey & Son - Hall Blvd Widening 1 CITY OF TIGARD,OREGON PERSONAL SERVICES CONTRACT THIS AGREEMENT made and entered into this 13th day of August, 2003 by and between the CITY OF TIGARD, a municipal corporation of the State of Oregon, hereinafter called CITY, and John L. Jersey& Son,7015 NE 42"d Ave,Portland;OR 97218,hereinafter called CONSULTANT. WITNESSETH WHEREAS, CITY has need for the services of a company with a particular training, ability, knowledge, and experience possessed by CONSULTANT,and WHEREAS, City has determined that John L. Jersey & Son is qualified and capable of performing the professional services as CITY does hereinafter require,under those terms and conditions set forth: NOW, THEREFORE, in consideration of the mutual covenants contained herein, the parties agree as follows: 1. SERVICES TO BE PROVIDED: CONSULTANT shall initiate services immediately upon receipt of CITY'S notice to proceed, together with an executed copy of this Agreement. CONSULTANT agrees to complete work which 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 August 30, 2003 or June 30,2004,whichever comes first. All work under this Agreement shall be completed prior to the expiration of this Agreement. 3. COMPENSATION: CITY agrees to pay CONSULTANT not to exceed$1,707.09 for performance of those services described herein, which payment shall be based upon the following applicable terms: a. Payment by CITY to CONSULTANT for performance of services under this Agreement includes all expenses incurred by CONSULTANT, with the exception of expenses, if any, identified in this Agreement as separately reimbursable. b. Payment will be made in installments based on CONSULTANT'S invoice, subject to the approval of the City Manager, 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 CONSULTANT, 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. Personal Services Contract—John L.Jersey&Sons Hall Blvd.Improvements ST03-02 Page 1 of 12 d. CONSULTANT shall make payments promptly, as due, to all persons supplying labor or materials for the prosecution of this work. e. CONSULTANT 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. CONSULTANT shall pay to the Department of Revenue all sums withheld from . employees pursuant to ORS 316.167. g. If CONSULTANT fails, neglects or refuses to make prompt payment of any claim for labor or services furnished to CONSULTANT 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 CONSULTANT. The payment of the claim in this manner shall not relieve CONSULTANT or their surety from obligation with respect to any unpaid claims. h. CONSULTANT 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. CONSULTANT 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 CONSULTANT or all sums which CONSULTANT agrees to pay for such services and all moneys and sums which CONSULTANT 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 CONSULTANT which result from this Agreement, including any computations, plans, correspondence or pertinent data and information gathered by or computed by CONSULTANT prior to termination of this Agreement by CONSULTANT or upon completion of the work pursuant to this Agreement. 5. ASSIGNMENT/DELEGATION: Neither party shall assign, sublet or transfer any interest in or duty under this Agreement without the written consent of the other and no assignment shall be of any force or effect whatsoever unless and until the other party has so consented. If CITY agrees to assignment of tasks to a subcontract, CONSULTANT 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. Personal Services Contract—John L.Jersey&Sons Hall Blvd.Improvements ST03-02 Page 2 of 12 6. STATUS OF CONSULTANT AS INDEPENDENT CONSULTANT: CONSULTANT certifies that: a. CONSULTANT acknowledges that for all purposes related to this Agreement, CONSULTANT 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 CONSULTANT 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 CONSULTANT under the terms of this Agreement, to the full extent of any benefits or other remuneration CONSULTANT 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 CONSULTANT or to a third party) as a result of said finding. b. The undersigned CONSULTANT 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 CONSULTANT, 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, CONSULTANT certifies that he or 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. CONSULTANT 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. CONSULTANT certifies that it currently has a CITY business license or will obtain one prior to delivering services under this Agreement. d. CONSULTANT is not an officer, employee, or agent of the CITY as those terms are used in ORS 30.265. offis tke Foqair-emoa4s, 4 appliGah-lo f-ada;all Mato and Wgal laws, it Wi" ander-stood that. NT- WNW tQ im Personal Services Contract—John L.Jersey&Sons Hall Blvd.Improvements ST03-02 Page 3 of 12 efqpy� and its employees. &W-gla ind-eamia-riention shall also cauer Waims h ught again 8. INSURANCE: CONSULTANT 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 CONSULTANT'S activities or work hereunder, including the operations of its subcontractors of any tier. Such insurance shall include provisions that such 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 CONSULTANT and its subcontractor shall provide at least the following limits and coverages: a. Commercial General Liability Insurance CONSULTANT shall obtain, at consultant'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 (1986 ISO or equivalent). This coverage shall include Contractual Liability insurance for the indemnity provided/Under this contract. The following insurance will be carried: Co vty�ej -ems- 44� S A ee,+_S r Limit General Aggregate 2,eea,() Produefs Gompletod Operations Aggregate f,686,666 , G ,vvv,vvv ,r go /A., 0 4;rol ✓vcn, vv 888 b. Commercial Automobile Insurance CONSULTANT shall also obtain, at consultant's expense, and keep in effect during the term of the contract, "Symbol 1" 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 CONSULTANT, its subcontractors, if any, and all employers providing work, labor or materials under this Contract are subject employers under the Oregon Personal Services Contract—John L.Jersey&Sons Hall Blvd.Improvements ST03-02 Page 4 of 12 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. 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. Consultants who perform work without the assistance or labor of any employee need not to obtain such coverage." This shall include Employer's Liability Insurance with coverage limits of not less than $100,000 each accident. d. Additional Insured Provision The City of Tigard, Oregon, its officers, directors, and employees shall be added as additional insureds with respect to this contract. All Liability Insurance policies will be endorsed to show this additional coverage. 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 CONSULTANT 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 consultant 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 Consultant Status The service or services to be rendered under this contract are those of an independent consultant. CONSULTANT is not an officer, employee or agent of the CITY as those terms are used in ORS 30.265. i. Primary Coverage Clarification All parties to this contract hereby agree that the CONSULTANT'S coverage will be primary in the event of a loss. j. Cross-Liability Clause Personal Services Contract—John L.Jersey&Sons Hall Blvd.Improvements ST03-02 Page 5 of 12 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. CONSULTANT'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:. Vannie T.Nguyen, P.E.,CIP Engineering Manager City of Tigard 13125 SW Hall Blvd. Tigard, Oregon 97223 Such policies or certificates must be delivered prior to commencement of the work. Ten days cancellation notice shall be provided CITY by certified mail to the name at the address listed above in event of cancellation or non-renewal of the insurance. The procuring of such required insurance shall not be construed to limit consultant's liability hereunder. Notwithstanding said insurance, CONSULTANT shall be obligated for the total amount of any damage, injury, or loss caused by negligence or neglect :connected with this contract. 9. METHOD AND PLACE OF GIVING NOTICE, SUBMITTING BILLS AND MAKING PAYME S. ��A;, , f 0 j ky All notices,bills and payments shall be made in writing and may be given by personal delivery or by mail. Notices,bills and payments sent by mail should be addressed as follows: CITY OF TIGARD Vannie T.Nguyen, P.E.,CIP Engineering Manager 13125 SW Hall Blvd. Tigard, Oregon 97223 CONSULTANT John L. Jersey& Son 7015 NE 42° Ave Portland, OR 97218 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 maybe made in the names and addresses of the person to whom notices,bills and payments are to be given by giving written notice pursuant to this paragraph. 10. MERGER: Personal Services Contract—John L.Jersey&Sons Hall Blvd.Improvements ST03-02 Page 6 of 12 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 CONSULTANT which, does not represent clients on matters contrary to CITY interests. Further, CONSULTANT 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 CONSULTANT 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, CONSULTANT shall consult with the appropriate CITY representative regarding the conflict. After such consultation, the CONSULTANT shall have ten 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 -iii) 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 CONSULTANT. If CITY terminates the contract pursuant to this paragraph,it shall pay CONSULTANT 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 CONSULTANT, or at such later date as may be established by CITY, under any of the following conditions: i. 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 ii. 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. iii. If any license or certificate required by law or regulation to be held by CONSULTANT, its subcontractors, agents, and employees to provide the services required by this Agreement is for any reason denied, revoked, or not renewed. Personal Services Contract—John L.Jersey&Sons Hall Blvd.Improvements ST03-02 Page 7 of 12 iv. If CONSULTANT becomes insolvent, if voluntary or involuntary petition in bankruptcy is filed by or against CONSULTANT, ,if a receiver or trustee is appointed for CONSULTANT, or if there is an assignment for the benefit of creditors of CONSULTANT. 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 CONSULTANT, may terminate the whole or any part of this Agreement: i. If CONSULTANT fails to provide services called for by this agreement within the time specified herein or any extension thereof,or ii. If CONSULTANT 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. iii. If CONSULTANT 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 CONSULTANT 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), CONSULTANT 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 CONSULTANT 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 CONSULTANT. 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 CONSULTANT as are directly pertinent to this Agreement for the purpose of making audit, examination, excerpts and transcripts. 15. FORCE MAJEURE: Neither CITY nor CONSULTANT 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 Personal Services Contract—John L.Jersey&Sons Hall Blvd.Improvements ST03-02 Page 8 of 12 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. 1.6. NON-WAIVER: The failure of CITY to insist upon or enforce strict performance by CONSULTANT 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: CONSULTANT agrees to comply with all applicable requirements of federal and state civil rights and rehabilitation statues,rules, and regulations. CONSULTANT 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: CONSULTANT 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 CIP Engineering Manager may authorize extra (and/or changes) work. Failure of CONSULTANT 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 CONSULTANT thereafter shall be entitled to no compensation whatsoever for the performance of such work. 20. WARRANTIES: All work shall be guaranteed by CONSULTANT for a period of one year after the date of final acceptance of the work by the owner. CONSULTANT 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 CONSULTANT 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. Personal Services Contract—John L.Jersey&Sons Hall Blvd.Improvements ST03-02 Page 9 of 12 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 APPLICABLE LAW: CONSULTANT 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. 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: CONSULTANT 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. CONSULTANT 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. 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. CONSULTANT, 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 CONSULTANT has executed this Agreement on the date hereinabove first written. Personal Services Contract—John L.Jersey&Sons Hall Blvd.Improvements ST03-02 Page 10 of 12 CONSULTANT By: John L. Jersey'r Son Date CITY OF TIGARD S Itt a By: Vannie T.Ng n, .E.,CIP Engineering Manager Date Personal Services Contract—John L.Jersey&Sons Hall Blvd.Improvements ST03-02 Page I 1 of 12 EXHIBIT `A' SERVICES TO BE PROVIDED Per attached Project Estimate dated'8/12/03 by Mark Gerber. Personal Services Contract—John L.Jersey&Sons Hall Blvd.Improvements ST03-02 Page 12 of 12 ' AUG-12-03` 02 :30 FM I NT �JOR-TRA I LER-J.'L. J 1 S 681 7959 P. 02 .Joh- John L. Jerse' & Son - Ph.(503(287064 Fa■(503)?87-06a6 Project.Estimate c4C.[C7 CATSPLAN$H(fTS Es,u�roe Ca[C7cE� --•—^�� .,o CC OU 1.471rV aIMENS!ONS 5/�1� 17— �t:'�.� :•.75::!h.iN l( ` /f�/.__ ' .. _ ;f Nrrm W.Dr. DEPTH ! G -- 1 • .''� _� � U tom'` I - - _ r -f. !