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Mears Design Group ~ C130031 1 !3 & o3 t N m Contract Number CITY OF TIGARD, OREGON PERSONAL SERVICES CONTRACT ASH CREEK REFORESTATION TREE PLANTING — LANDSCAPE ARCHITECTURAL SERVICES THIS AGREEMENT made and entered into this 22nd day of August, 2012 by and between the City of Tigard, a municipal corporation of the State of Oregon, hereinafter called City, and Mears Design Group, hereinafter called Landscape Architect. RECITALS WHEREAS, the City's 2012-2013 fiscal year budget provides for landscape architectural services related to the Ash Creek Reforestation Tree Planting project; and WHEREAS, City has need for the services of a company with a particular training, ability, knowledge, and experience possessed by Landscape Architect, and WHEREAS, City has determined that Landscape Architect 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 Landscape Architect shall initiate services immediately upon receipt of City's notice to proceed together with an executed copy of this Agreement. Landscape Architect 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 August 31 , 2015 . All work under this Agreement shall be completed prior to the expiration of this Agreement. 3. COMPENSATION The City agrees to pay Landscape Architect 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 Landscape Architect by the City shall not exceed Nine Thousand Seven Hundred Twenty and No/ 100 Dollars ($9,720.00) if all tasks are completed. Any and all payments made to the Landscape Architect shall be based upon the following applicable terms: A. Payment by City to Landscape Architect for performance of services under this Agreement includes all expenses incurred by Landscape Architect, with the exception of expenses, if any identified in this Agreement as separately reimbursable. B . Payment will be made in installments based on Landscape Architect'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 Landscape Architect, 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 . Landscape Architect shall make payments promptly, as due, to all persons supplying labor or materials for the prosecution of this work. E. Landscape Architect 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. Landscape Architect shall pay to the Department of Revenue all sums withheld from employees pursuant to ORS 316 . 167. G. If Landscape Architect fails, neglects or refuses to make prompt payment of any claim for labor or services furnished to Landscape Architect 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 Landscape Architect. The payment of the claim in this manner shall not relieve Landscape Architect or their surety from obligation with respect to any unpaid claims . H. Landscape Architect 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. Landscape Architect 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 Landscape Architect or all sums which Landscape Architect agrees to pay for such services and all moneys and sums which Landscape Architect 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 Landscape Architect which result from this Agreement, including any computations, plans, correspondence or pertinent data and information gathered by or computed by Landscape Architect prior to termination of this Agreement by Landscape Architect 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, Landscape Architect shall be fully responsible for the acts or omissions of any subcontractor and of all 2013 PSA — Ash Creek Reforestation Project 2 I . ' A 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. 6. STATUS OF LANDSCAPE ARCHITECT AS INDEPENDENT LANDSCAPE ARCHITECT Landscape Architect certifies that: A. Landscape Architect acknowledges that for all purposes related to this Agreement, Landscape Architect is and shall be deemed to be an independent Landscape Architect 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 Landscape Architect 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 Landscape Architect under the terms of this Agreement, to the full extent of any benefits or other remuneration Landscape Architect 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 Landscape Architect or to a third party) as a result of said finding. B . The undersigned Landscape Architect 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 Landscape Architect, 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, Landscape Architect 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. Landscape Architect 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. Landscape Architect certifies that it currently has a City business license or will obtain one prior to delivering services under this Agreement. D . Landscape Architect 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 Landscape Architect as a material inducement to enter into this Agreement. Landscape Architect 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 Landscape Architect's work by City shall not operate as a waiver or release. 2013 PSA — Ash Creek Reforestation Project 3 I > . Landscape Architect 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 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 Landscape Architect 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 Landscape Architect's activities or work hereunder, including the operations of its subcontractors of any tier. The policy or policies of insurance maintained by the Landscape Architect and its subcontractors shall provide at least the following limits and coverages: A. Commercial General Liability Insurance Landscape Architect shall obtain, at Landscape Architect'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 4,000,000 Products-Completed Operations Aggregate 1 ,000,000 Personal & Advertising Injury 1 ,000,000 Each Occurrence 2,000,000 Fire Damage (Any one fire) 50,000 Medical Expense (Any one person) 5,000 B . Commercial Automobile Insurance Landscape Architect shall also obtain, at Landscape Architect'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 Landscape Architect, its contractors, 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 2013 PSA — Ash Creek Reforestation Project 4 I � ' :+. at a single location within Oregon for more than 30 days in a calendar year. Landscape Architects 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. 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 Landscape Architect 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 Landscape Architect 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 Landscape Architect Status The service or services to be rendered under this contract are those of an independent Landscape Architect. Landscape Architect 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 Landscape Architect'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 Landscape Architect's liability hereunder. 2013 PSA — Ash Creek Reforestation Project 5 P ; Notwithstanding said insurance, Landscape Architect 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 OF TIGARD MEARS DESIGN GROUP Attn: Tom McGuire Attn: Troy Mears Address : 13125 SW Hall Blvd. Address : PO Box 23338 Tigard, Oregon 97223 Tigard, Oregon 97281 Phone: (503) 718-2490 Phone: (503) 601 -4516 Fax: (503) Fax: (503) 924-4688 Email Address : tomm(tigard-or.gov Email Address : troym @mearsdesigngroup . 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 Landscape Architect that does not represent clients on matters contrary to City interests . Further, Landscape Architect 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 Landscape Architect 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, Landscape Architect shall consult with the appropriate City representative regarding the conflict. After such consultation, the Landscape Architect 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. 2013 PSA — Ash Creek Reforestation Project 6 I P e 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 Landscape Architect. If City terminates the contract pursuant to this paragraph, it shall pay Landscape Architect 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 Landscape Architect, or at such later date as may be established by City, under any of the following conditions: 1 ) If City finding 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 sen-ices 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 Landscape Architect, its subcontractors, agents, and employees to provide the services required by this Agreement is for any reason denied, revoked, or not renewed. 4) If Landscape Architect becomes insolvent, if voluntary or involuntary petition in bankruptcy is filed by or against Landscape Architect, if a receiver or trustee is appointed for Landscape Architect, or if there is an assignment for the benefit of creditors of Landscape Architect. 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 Landscape Architect, may terminate the whole or any part of this Agreement: 1 ) If Landscape Architect fails to provide services called for by this agreement within the time specified herein or any extension thereof, or 2) If Landscape Architect 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 Landscape Architect 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 Landscape Architect 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), Landscape Architect 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 2013 PSA — Ash Creek Reforestation Project 7 I . ' satisfactorily rendered by Landscape Architect 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 Landscape Architect. 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 Landscape Architect as are directly pertinent to this Agreement for the purpose of making audit, examination, excerpts and transcripts . 15. FORCE MAJEURE Neither City nor Landscape Architect 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 subcontractors 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 Landscape Architect 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 Landscape Architect agrees to comply with all applicable requirements of federal and state civil rights and rehabilitation statues, rules, and regulations. Landscape Architect 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 Landscape Architect 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 Agreement may authorize extra (and/or change) work. Failure of Landscape Architect 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 Landscape Architect thereafter shall be entitled to no compensation whatsoever for the performance of such work. 2013 PSA — Ash Creek Reforestation Project 8 I T ) > I 20. WARRANTIES All work shall be guaranteed by Landscape Architect for a period of one year after the date of final acceptance of the work by the owner. Landscape Architect 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 Landscape Architect 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. 23. COMPLIANCE WITH STATE AND FEDERAL LAWS /RULES Landscape Architect 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 Landscape Architect 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. Landscape Architect 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 Landscape Architect labor or materials for the execution of the work provided by this order. Landscape Architect must pay all contributions or amounts due from Landscape Architect to the Industrial Accident Fund incurred in the 2013 PSA — Ash Creek Reforestation Project 9 performance of this order. Landscape Architect 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. Landscape Architect 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 Landscape Architect 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 Landscape Architect, of all sums which the Landscape Architect agrees to pay for such services and all moneys and sums which the Landscape Architect collected or deducted from the wages of the employees pursuant to any law, Landscape Architect 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. Landscape Architect, 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 Landscape Architect has executed this Agreement on the date hereinabove first written. CITY OF TIGARD - MEARS DESIGN GROUP 1;t- /7 '41/7/ , • , te€49--- By: - B : Auto / ed Agent of Landscape Architect Y g p 4) 721 7L SCI iask 2.. Date Date 2013 PSA — Ash Creek Reforestation Project 10 I a t S EXHIBIT A SERVICES TO BE PROVIDED 1. LANDSCAPE ARCHITECURE SERVICES A. Planting Plan & Details Landscape Architect shall prepare revisions to tree planting plan at 1 "-20' and all required details . 1) Prepare revision to tree layout based on current site conditions . 2) One (1) site visit to verify new tree layout. 3) Review plans with City. B . Irrigation Plan & Details Landscape Architect shall prepare revisions to the irrigation plan at 1 "-20' and all required details. 1) Develop revisions to irrigation plan for the tree planting areas according to the layout revisions . 2) The irrigation system will utilize a battery controller and City provided water meter. C . Landscape & Irrigation Technical Specifications Landscape Architect will prepare revisions to landscape and irrigation technical specifications for construction installation bidding of the project. D . Bidding Landscape Architect shall distribute tree planting design documents to qualified landscape contractors for bid. 1) Distribute the design documents for bid to three (3) qualified landscape contractors . 2) Answer any questions from contractors during bidding process . 3) Receive and recommend contractor to complete construction of the project. E. Construction Observation Landscape Architect shall provide tree planting construction observations and recommendations during construction period. 1) Provide on-site monitoring and observation of tree planting construction (4) . 2) Answer any questions for contractors during construction period. 3) Provide final walk-thru with contractor and City representative (1) . 4) Prepare punch list as required. 5) Provide final record drawings of tree planting and irrigation installation based from site observations and contractor red-lined drawings . 2. TREE MONITORING SERVICES A. Tree Monitoring During Monitoring Period Landscape Architect shall provide monthly tree monitoring site visits and reports for three (3) year monitoring period. 2013 PSA — Ash Creek Reforestation Project 11 I it 1) Provide on-site observation of planted trees . 2) Prepare monthly monitoring report of planted trees including any recommendations to tree monitoring contractor and City. 2013 PSA — Ash Creek Reforestation Project 12 I t,