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Walter H. Knapp & Associates ~ C120054 Contract Number CITY OF TIGARD,OREGON PERSONAL SERVICES CONTRACT FANNO CREEK TRAIL—MAIN STREET TO GRANT(92024) ARBORIST REPORT AND TREE REMOVAL/PROTECTION PLAN THIS AGREEMENT made and entered into this 17s' day of November, 2011 by and between the City of Tigard, a municipal corporation of the State of Oregon, hereinafter called City, and Walter H. Knapp & Associates,LLC,hereinafter called Contractor. RECITALS WHRF'tS, the City's 2011-2012 Fiscal Year budget provides for services related to the development of an arborist report and tree removal and protection plan for the City's Fanno Creek Trail—Main Street to Grant project;and WHEREAS City has need for the services of a company with a particular training, ability-, knowledge, and experience possessed by Contractor,and WHEREAS City has determined that Contractor is qualified and capable of performing the professional services as City does hereinafter require,under those terms and conditions set forth, THEREFORE the Parties agree as follows: 1. SERVICES TO BE PROVIDED Contractor shall initiate services immediately upon receipt of City's notice to proceed together with an executed copy of this Agreement. Contractor agrees to complete work that is detailed in Exhibit A and by this reference made a part hereof. 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 Contractor 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 Contractor by the City shall not exceed One Thousand Six Hundred Ninety and No/100 Dollars ($1,690.00) if all tasks are completed. All payments shall be based upon an hourly rate of One Hundred Twenty Five and No/100 Dollars ($125.00/hour.) Any and all payments made to the Contractor shall be based upon the following applicable terms: A. Payment by City to Contractor for performance of services under this Agreement includes all expenses incurred by Contractor, with the exception of expenses, if any identified in this Agreement as separately reimbursable. B. Pavment will be made in installments based on Contractor's invoice, subject to the approval of the City Manager, or designee, and not more frequently than monthly. Payment shall be made only for work actually completed as of the date of invoice. C. Payment by City shall release City from any further obligation for payment to Contractor, for services performed or expenses incurred as of the date of the invoice.Payment shall not be considered acceptance or approval of any work or waiver of any defects therein. D. Contractor shall make payments promptly,as due, to all persons supplying labor or materials for the prosecution of this work. E. Contractor shall not permit any lien or claim to be filed or prosecuted against the City on any account of any labor or material furnished. F. Contractor shall pay to the Department of Revenue all sums withheld from employees pursuant to ORS 316.167. G. If Contractor fails, neglects or refuses to make prompt payment of any claim for labor or services furnished to Contractor or a subcontractor by any person as such claim becomes due, City's Finance Director may pay such claim and charge the amount of the payment against funds due or to become due the Contractor. The payment of the claim in this manner shall not relieve Contractor or their surety from obligation with respect to any unpaid claims. H. Contractor shall pay employees at least time and a half pay for all overtime worked in excess of 40 hours in any one week except for individuals under the contract who are excluded under ORS 653.010 to 653.261 or under 29 USC sections 201 to 209 from receiving overtime. Contractor shall promptly,as due,make payment to any person,co-partnership,association or corporation, furnishing medical, surgical and hospital care or other needed care and attention incident to sickness or injury to the employees of Contractor or all sums which Contractor agrees to pay for such services and all moneys and sums which Contractor collected or deducted from the wages of employees pursuant to any law, contract or agreement for the purpose of providing or paying for such service. J. The City certifies that sufficient funds are available and authorized for expenditure to finance costs of this contract 4. OWNERSHIP OF WORK PRODUCT Citv shall be the owner of and shall be entitled to possession of any and all work products of Contractor which result from this Agreement,including any computations,plans,correspondence or pertinent data and information gathered by or computed by Contractor prior to termination of this Agreement by Contractor or upon completion of the work pursuant to this Agreement. 5. 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, Fanno Creek Trail—Arborist Report and Tree Removal/Protection Plan PSA Page 2 Contractor shall be fully responsible for the acts or omissions of any subcontractors and of all persons employed by them, and neither the approval by City of any subcontractor nor anything contained herein shall be deemed to create any contractual relation between the subcontractor and City. 6. STATUS OF CONTRACTOR AS INDEPENDENT CONTKACTQR Contractor certifies that: A. Contractor acknowledges that for all purposes related to this Agreement,Contractor is and shall be deemed to be an independent contractor as defined by ORS 670.700 and not an employee of City,shall not be entitled to benefits of any kind to which an employee of City is entitled and shall be solely responsible for all payments and taxes required by law. Furthermore,in the event that Contractor is found by a court of law or any administrative agency to be an employee of City for any purpose, City shall be entitled to offset compensation due, or to demand repayment of any amounts paid to Contractor under the terms of this Agreement, to the full extent of any benefits or other remuneration Contractor receives (from City or third party)as a result of said finding and to the full extent of any payments that City is required to make (to Contractor or to a third party)as a insult of said finding. B. The undersigned Contractor hereby represents that no employee of the City,or any partnership or corporation in which a City employee has an interest,has or will receive any remuneration of any description from Contractor,either directly or indirectly,in connection with the letting or performance of this Agreement,except as specifically declared in writing. If this payment is to be charged against Federal funds, Contractor certifies that he/she is not currently employed by the Federal Government and the amount charged does not exceed his or her normal charge for the type of service provided. Contractor and its employees,if any,are not active members of the Oregon Public Employees Retirement System and are not employed for a total of 600 hours or more in the calendar year by any public employer participating in the Retirement System- C. ystem.C. Contractor certifies that it currently has a City business license or will obtain one prior to delivering services under this Agreement. D. Contractor is not an officer, employee, or agent of the City as those terms are used in ORS 30.265. 7, INDEMNIFICATION City has relied upon the professional ability and training of Contractor as a material inducement to enter Contractor warrants that all its work will be performed in accordance with into this Agreement . ndards as well as the requirements of applicable federal, generally accepted professional practices and sta state and local laws,it being understood that acceptance of a contractor's work by City shall not operate as a waiver or release. Contractor 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 attomey's fees and witness costs and(at both trial and appeal level,whether or not a Fanno Creek TraR—arborist Report and Tree Removal/Protection Plan PSa Page 3 t mav be asserted rson or entity which in any wv se tha ny trial or appeal ever takes prion)with the performancebofathe work de cribed in this ontractaexcept from, during or in conn liability arising out of the sole negligen ae tare or fedeCity and lts employees. Such ral worker's compensation llaawss. If any aspect cover claims brought again t3 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. g, II�TSU_ RANGE Contractor and its subcontractors shall maintain insurance acceptable to City in full force and i effect hall cover all risks g directly or Throughout the tetzn of tctly his contract, work hereunderuincluancedtng the°perations of its subcontractors ofeanv out of Contractor's activities tier. -1-he polity or policies of insurance maintained by the Contractor and its subcontractor shall provide at least the following limits and coverages: A. CommPrc,«r - -al I iabilits-In,; u��.,, Contractor shall obtain, at contractor's expense, and keep in effect during the term of this contract, Comprehensive General Liability Insurance covering Bodily' Injury and Property Damage on an "occurrence" form (1996Oequiva ender This ovisa e shalntrct include e Contractual Liability insurance for the indemnity Provided following insurance will be carried: L' it ov r e 2,000,000 General Aggregate 1,000,000 Products-Completed Operations Aggregate 1,000,000 Personal&Advertising Injury 1,000,000 Each Occurrence 50,000 Fire Damage(Any one fire) 5,000 Medical Expense(Any one person) B. Commercial Automobile InsL''ance d keep in effect during the tem Of Contractor ser soca rhall also obtain, at contractor's expense, an the contract, Commerciehicleal s The Combinmobile ed Single ty aLimit peroccurrencng eshall not be lese for an s hired,and non-owned than$1,000,000- C. Workers Com pen cation Insurance The contractor,its Subcontractors,if any,and all employers providing Worwork,rompenOr ari no Law under this Contract that are subject employers under the Oregon shall comply with ORS 65G.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 ti location within Oregon for more than 30 days in a calendar vear. Contractors who perform a on work without the assistance or labor of any ll provide Employees Liablhtye need not obtain �Inso'�rn ens with coverage. ,all non-exempt employers shall p I coverage limits of not less than$500,000 each accident. Page 4 1 Fanno Creek Trail—Arborist Report and Tree Removal/Protection Plan P i f : E i r 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 Contractor must be underwritten by an insurance company deemed acceptable by the City. The City reserves the right to reject all or any insurance carrier(s)with an unacceptable financial rating. F. Certificates of Insurance As evidence of the insurance coverage required by the contract,the Contractor shall furnish a Certificate of Insurance to the City. No contract shall be effected until the required certificates have been received and approved by the City. The certificate will specify and document all provisions within this contract. A renewal certificate will be sent to the above address 14 days prior to coverage expiration. G. Independent Contractor Status The service or services to be rendered under this contract are those of an independent contractor. Contractor is not an officer, employee or agent of the City as those terms are used in ORS 30.265. H. Primary overt Clarification The parties agree that Contractor's coverage shall be primary to the extent permitted by law. The parties further agree that other insurance maintained by the City is excess and not contributory insurance with the insurance required in this section. I. Cross-I iabih1y Clause A crass-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: Joseph Barrett,Sr.Management Analyst 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 contractor's liability hereunder. Notwithstanding said insurance, Contractor shall be obligated for the total amount of any damage, injury,or loss caused by negligence or neglect connected with this contract. Fanno Creek Tran—Arborist Report and Tree Removal/Protection Plan PSA Page 5 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 WALTER H.KNAPP&ASSOCIATES,LLC Arm: Jeff Peck,Sr Engineering Tech Attn: Walter H.Knapp Address: 13125 SW Hall Blvd., Address: 7615 SW Dunsmuir Lane Tigard,Oregon 97223 Beaverton,Oregon 97007 Phone (503)718-2466 Phone: (503)646-4349 Fax (503)624-0752 Fax: (503)265-8117 Email address• jeffo(&tizard-or.go�- 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 Contractor that does not represent clients on matters contrary to City interests. Further, Contractor shall not engage services of an attorney and/or other professional who individually, or through members of his/her same firm,represents clients on matters contrary to City interesrs. Should the Contractor represent clients on matters contrary to City interests or engage the services on an attorney and/or other professional who individually, or through members of his/her same firm, represents clients on matters contrary to City interests, Contractor shall consult with the appropriate City representative regarding the conflict. After such consultation, the Contractor 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 Contractor. If City terminates the contract pursuant to this paragraph,it shall pay Contractor for services rendered to the date of termination. )~anno Creek Trail—.Arborist Report and Tree Removal/Protection Plan PSA Page G 13. TERMINATION WITH CAUSE A. City may terminate this Agreement effective upon delivery of written notice to Contractor,or at such later date as may be established by City,under any of the following conditions: 1) If City funding from federal,state,local,or other sources is not obtained and continued at levels sufficient to allow for the purchase of the indicated quantity of services. This Agreement may be modified to accommodate a reduction in funds 2) If federal or state regulations or guidelines are modified,changed,or interpreted in such a way that the services are no longer allowable or appropriate for purchase under this Agreement. 3) If any license or certificate required by law or regulation to be held by Contractor,its subcontractors, agents, and employees to provide the services required by this Agreement is for any reason denied,revoked,or not renewed. 4) If Contractor becomes insolvent,if voluntary or involuntary petition in bankruptcy is filed by or against Contractor,if a receiver or trustee is appointed for Contractor,or if there is an assignment for the benefit of creditors of Contractor. Any such termination of this agreement under paragraph (a) shall be without prejudice to any obligations or liabilities of either party already accrued prior to such termination. B. City,by written notice of default (including breach of contract) to Contractor,may terminate the whole or any part of this Agreement 1) If Contractor fails to provide services called for by this agreement within the time specified herein or any extension thereof,or 2) If Contractor fails to perform any of the other provisions of this Agreement,or so fails to pursue the work as to endanger performance of this agreement in accordance with its terms, and after receipt of written notice from City, fails to correct such failures within ten(10)days or such other period as City may authorize. 3) If Contractor fails to eliminate a conflict as described in Section 11 of this agreement. The rights and remedies of City provided in the above clause related to defaults (including breach of contract)by Contractor shall not be exclusive and are in addition to any other rights ,> and remedies provided by law or under this Agreement. If City terminates this Agreement under paragraph(b),Contractor shall be entitled to receive as full payment for all services satisfactorily rendered and expenses incurred, an amount which bears the same ratio to the total fees specified in this Agreement as the services satisfactorily rendered by Contractor bear to the total services otherwise required to be performed for such total fee;provided,that there shall be deducted from such amount the amount of damages,if anv,sustained by City due to breach of contract by Contractor. Damages for breach of contract shall be those allowed by Oregon law,reasonable and necessary attorney fees,and other costs of litigation at trial and upon appeal. Fanno Creek Tru?—Arborist Report and Tree Removal/Protection Plan PSA Page 7 14. ACCESS tO RECORDS City shall have access to such books, documents, papers and records of Contractor as are directly pertinent to this Agreement for the purpose of making audit,examination,excerpts and transcripts. 15. FORCE M=URE Neither City nor Contractor shall be considered in default because of any delays in completion and responsibilities hereunder due to causes beyond the control and without fault or negligence on the part of the parties so disenabled, including but not restricted to,an act of God or of a public enemv, civil unrest, volcano, earthquake, fire, flood, epidemic, quarantine restriction, area-wide strike, freight embargo, unusually severe weather or delay of subcontractor or supplies due to such cause;provided that the parties so disenabled shall within ten (10) days from the beginning of such delay, notify the other party in writing of the cause of delay and its probable extent. Such notification shall not be the basis for a claim for additional compensation. Each party shall,however,make all reasonable efforts to remove or eliminate such a cause of delay or default and shall, upon cessation of the cause, diligently pursue performance of its obligation under the Agreement 16. NON-WAIVER The failure of City to insist upon or enforce strict performance by Contractor of any of the terms of this Agreement or to exercise any rights hereunder should not be construed as a waiver or relinquishment to any ex-tent of its rights to assert or rely upon such terms or rights on any future occasion. 17. NON-DISCRIMINATION Contractor agrees to comply with all applicable requirements of federal and state civil rights and rehabilitation statues, rules, and regulations. Contractor also shall comply with the Americans with Disabilities Act of 1990,ORS 659.425,and all regulations and administrative rules established pursuant to those laws. 18. ERRORS Contractor shall perform such additional work as may be necessary to correct errors in the work required under this Agreement without undue delays and without additional cost. 14. EXTRA(CHANGES)WORK Only the City's Project Manager for this Agreement, Brian Rager, Asst Public Works Director, may authorize extra (and/or change) work. Failure of Contractor to secure authorization for extra work shall constitute a waiver of all right to adjustment in the contract price or contract time due to such unauthorized extra work and Contractor thereafter shall be entitled to no compensation whatsoever for the performance of such work. 20. WARRANTIES All work shall be guaranteed by Contractor for a period of one year after the date of final acceptance of the work by the owner. Contractor warrants that all practices and procedures, workmanship and materials shall be the best available unless otherwise specified in the profession. Neither acceptance of the work nor payment therefore shall relieve Contractor from liability under warranties contained in or implied by this Agreement. Fanno Creek-Trail—Arbori:t Report and'1'ree RemovWProtection Plan PSA Page 8 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 appropriatee court of the State of Oregon. 23. COMPLIANCE WITH STATE AND FEDERAL LAWS/RULES Contractor shall comply with all applicable federal, state and local laws, rules and regulations, including, but not limited to, the requirements concerning working hours, overtime, medical care, workers compensation insurance,health care payments,payments to employees and subcontractors and income tax withholding contained in ORS Chapter 279B, the provisions of which are hereby inade a part of this agreement. 24. CONFLICT BETWEEN TERMS It is further expressly agreed by and between the parties hereto that should there be any conflict between the terms of this instrument in the proposal of the contract,this instrument shall control and nothing herein shall be considered as an acceptance of the said terms of said proposal conflicting herewith. 25. AUDIT Contractor shall maintain records to assure conformance with the terms and conditions of this Agreement,and to assure adequate performance and accurate expenditures within the contract period. Contractor agrees to permit City,the State of Oregon,the federal government,or their duly authorized representatives to audit all records pertaining to this Agreement to assure the accurate expenditure of funds. 26. SEVERABILITY In the event any provision or portion of this Agreement is held to be unenforceable or invalid by any court of competent jurisdiction,the validity of the remaining terms and provisions shall not be affected to the extent that it did not materially affect the intent of the parties when they entered into the agreement. 27. CONDITIONS OF SUPPLYING A PUBLIC AGENCY Where applicable, seller must make payment promptly as due to persons supplying Contractor labor or materials for the execution of the work provided by this order. Contractor must pay all contributions or amounts due from Contractor to the Industrial Accident Fund incurred in the performance of this order. Contractor shall not permit any lien or claim to be filed or prosecuted against Buyer or any subdivision of Citv on account of anv labor or material to be famished Contractor further agrees to pay to the Department of Revenue all sums withheld from employees pursuant to ORS 316.167. 28. HOURS OF LABOR If labor is performed under this order,then no person shall be employed for more than eight(8)hours in any one day,or forty(40)hours in any one week,except in cases of necessity,or emergency or where the Fanno Creek TraA—Arborist Report and Tree Removal/Protection Plan PSA Page 9 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 Ieast 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 WOREF 'COMPENSATION Contractor shall promptly,as due,make payment to any person,co-partnership,association or corporation, famishing medical, surgical and hospital care or other needed care and attention incident to sickness or injury, to the employees of such Contractor, of all sums which the Contractor agrees to pay for such services and all moneys and sums which the Contractor collected or deducted from the wages of the employees pursuant to any law, contractor agreement for the purpose of providing or paying for such service. 30. COMPLETE AGREEMENT This Agreement and attached exhibits constitutes the entire Agreement between the parties. No waiver, consent, modification,or change of terms of this Agreement shall bind either party unless in writing and signed by both parties. Such waiver, consent, modification, or change if made, shall be effective only in specific instances and for the specific purpose given. There are no understandings, agreements, or representations, oral or written, not specified herein regarding this Agreement. Contractor,by the signature of its authorized representative,hereby acknowledges that he has read this Agreement,understands it and agrees to be bound by its terms and conditions. LSI WITNESS WHEREOF,City has caused this Agreement to be executed by its duly authorized undersigned officer and Contractor has executed this Agreement on the date hereinabove first written. CITY OF TIGARD WALTE APP&ASSOCIATES,LLC ,.t �, j /I By; 'authorized Agent of City By:Authorized)(gq&t of Contractor ` .tw Date Date Fmno Creek TraR—Arborist RLWrt and Tree Removal/Protecdon Plan PSA Page 10 E1I-1tIBIT—A SERVICES TO BE PROVIDED ARBORIST REPORT&TREE R.EMOVAL/PROTECTION PLAN 1, a 50-foot swath of the proposed trail alignment on Contractor shall identify trees G" dbh or larger within all subject properties. documentort w"l Contractor shall prepare a Tree plan per City of d Code 1 ndanons for treeretention and removal 2. of individual trees,Provide arbon's and after constructio The report will address the include recommendationn for trees recommend, d for general condition s for tree protection during retention,and describe the City'smitigation sea requirements lands,which require a°tree removal permit per City of City's regulations for tree removal on sensitive Tigard Code 18.790.050. 3, Contractor shall conduct tree protection monitoring during construction when work is occurring rt adjacent to protected trees. Each site visit will ad providing recommendations for tree protection measures abe followed with a tree protection inspection repo documenting the condition of tree protection as needed. A final inspection will be required to document the 4. Contractor shall perform site visits to verify installation of tree protection measures and provideare. recommendations for tree protection as need, d.condition of trees following construction and to provide recommendations for long-term tree Assume four(4)site visits will be required to complete the arborist services. tags and plastic ribbon to trees that axe recommended for 5. Contractor shall attach numbered aluminum. Con removal for safety or construction. Contractor hazard will trail s users. Please note trees outside this ewill not be0, swath a situations where able to clearly identify a ha comprehensive,all-inclusive assessment of trees outside the 50'examination corridotal lum sum cost to 6. The hourly rate charge by the Contractor to the City shall be $125/hour. The P the City for the project is$1,690. 4 t Page 11 Fanno Creek Trail—Arborist Report and Tree Removal/Protection Plan PS.' Contract Numbcr CITY OF TIGARD,OREGON PERSONAL SERVICES CONTRACT FANNO CREEK TRAIL—MAIN STREET TO GRANT(92024) ARBORIST REPORT AND TREE REMOVAL/PROTECTION PLAN THIS AGREEMENT made and entered into this 17"' day of November, 2011 by and between the City of Tigard, a municipal corporation of the State of Oregon, hereinafter called City, and Walter H. Knapp & Associates,LLC,hereinafter called Contractor. RECITALS WHRRAS, the City's 2011-2012 Fiscal Year budget provides for services related to the development of an arborist report and tree removal and protection plan for the City's Fanno Creek Trail—Main Street to Grant project;and WHEREAS City has need for the services of a company with a particular training, ability, knowledge, and experience possessed by Contractor,and VVIIEREAS Cit} has determined that Contractor is qualified and capable of performing the professional services as Citi-does hereinafter require,under those terms and conditions set forth, THEREFORE the Parties agree as follows: 1. SERVICES TO BE PROVIDED Contractor shall initiate services immediately upon receipt of City's notice to proceed together with an executed copy of this Agreement. Contractor agrees to complete work that is detailed in Exhibit A and by this reference made a part hereof. 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 Contractor 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 Contractor by the City-shall not exceed One Thousand Six Hundred .Ninety and No/100 Dollars (51,690.00; if all tasks are completed. All pa=ents shall be based upon an hourly- rate of One Hundred Twenty Five and N0/100 Dollars ($125.00/hour.) Any and all payments made to the Contractor shall be based upon the following applicable terms: A. Payment by City to Contractor for performance of services under this agreement includes all expenses incurred by Contractor, with the exception of expenses, if any identified in this Agreement as separately reimbursable. B. Pavment will be made in installments based on Contractor's invoice, subject to the approval of the City Manager, or designee, and not more frequently than monthly. Payment shall be made only for work actually completed as of the date of invoice. C. Payment by City shall release City from any further obligation for payment to Contractor, for services performed or expenses incurred as of the date of the invoice.Payment shall not be considered acceptance or approval of any work or waiver of any defects therein. D. Contractor shall make payments promptly, as due, to all persons supplying labor or materials for the prosecution of this work. F:. Contractor shall not permit any lien or claim to be filed or prosecuted against the City on any account of any labor or material furnished. Contractor shall pay to the Department of Revenue all sums withheld from employees pursuant to ORS 316.167. G. If Contractor fails, neglects or refuses to make prompt payment of any claim for labor or services furnished to Contractor or a subcontractor by any person as such claim becomes due, City's Finance Director may pay such claim and charge the amount of the payment against funds due or to become due the Contractor. The payment of the claim in this manner shall not relieve Contractor or their surety from obligation with respect to any unpaid claims. H. Contractor shall pay employees at least time and a half pay for all overtime worked in excess of 40 hours in any one week except for individuals under the contract who are excluded under ORS 653.010 to 653.261 or under 29 USC sections 201 to 209 from receiving overtime. 1. Contractor shall promptly,as due,make payment to any person,co-partnership,association or corporation, furnishing medical, surgical and hospital care or other needed care and attention incident to sickness or injury to the employees of Contractor or all sums which Contractor agrees to pay for such services and all moneys and sums which Contractor collected or deducted from the wages of employees pursuant to any law, contract or agreement for the purpose of providing or paying for such service. J. The City= certifies that sufficient funds are available and authorized for expenditure to finance costs of this contract 4. OWNERSHIP OF WORK PRODUCT City shall be the owner of and shall be entitled to possession of any and all work products of Contractor which result from this Agreement,including any computations,plans,correspondence or pertinent data and information gathered by or computed by Contractor prior to termination of this Agreement by Contractor or upon completion of the work pursuant to this Agreement 5. ASSIGNMENUDELEGATION Neither parry 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 Cite agrees to assignment of tasks to a subcontract, Fanno Creek Trail—Arborist Report and Tree Removal/Protection Plan PSA Page 2 Contractor shall be fully responsible for the acts or omissions of any subcontractors and of all persons employed by them, and neither the approval by City of any subcontractor nor anything contained herein shall be deemed to create any contractual relation between the subcontractor and City. 6. STATUS OF CONTRACTOR AS INDEPENDENT CONTRACTOR Contractor certifies that, A. Contractor acknowledges that for all purposes related to this Agreement,Contractor is and shall be deemed to be an independent contractor as defined by ORS 670.700 and not an employee of City, shall not be entitled to benefits of any kind to which an employee of City is entitled and shall be solely responsible for all payments and taxes required by law. Furthermore,in the event that Contractor is found by a court of law or any administrative agency to be an employee of City for any purpose, City shall be entitled to offset compensation due, or to demand repayment of any amounts paid to Contractor under the terms of this Agreement, to the full extent of any benefits or other remuneration Contractor receives (from City or third party)as a result of said finding and to the full extent of any payments that City is required to make (to Contractor or to a third party)as a result of said finding. B. The undersigned Contractor hereby represents that no employee of the City,or any partnership or corporation in which a City employee has an interest,has or will receive any remuneration of any description from Contractor,either directly or indirectly,in connection with the letting or performance of this Agreement,except as specifically declared in writing. If this payment is to be charged against Federal funds, Contractor certifies that he/she is not currently employed by the Federal Government and the amount charged does not exceed his or her normal charge for the type of service provided. Contractor and its employees,if any,are not active members of the Oregon Public Employees Retirement System and are not employed for a total of 600 hours or more in the calendar year by any public employer participating in the Retirement System. C. Contractor certifies that it currently has a City business license or will obtain one prior to delivering services under this Agreement. D. Contractor is not an officer, employee, or agent of the City as those terms are used in ORS 30.265. 7. INDEMNIFICATION City has relied upon the professional ability and training of Contractor as a material inducement to enter into this Agreement. Contractor warrants that all its work will be performed in accordance with . generally accepted professional practices and standards as well as the requirements of applicable federal, state and local laws,it being understood that acceptance of a contractor's work by City shall not operate as a waiver or release. Contractor 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 Fanno Creek Trail—arborist Report and Tree Removal/Protection Plan PSA Page 3 i� 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 Contractor and its subcontractors shall maintain insurance acceptable to City in full force and effect throughout the term of this contract Such insurance shall cover all risks arising directly or indirectly out of Contractor's activities or work hereunder,including the operations of its subcontractors of any tier. The policy or policies of insurance maintained by the Contractor and its subcontractor shall provide at least the following limits and coverages: A. Commercial General Liability Insurance Contractor shall obtain, at contractor's expense, and keep in effect during the term of this contract, Comprehensive General Liability Insurance covering Bodily Injury and Property Damage on an "occurrence" form (1996 ISO or equivalent). This coverage shall include Contractual Liability insurance for the indemnity provided under this contract The following insurance will be carried: Overage 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 Contractor shall also obtain, at contractor's expense, and keep in effect during the term of the contract, Commercial Automobile Liability coverage including coverage for all owned, hired,and non-owned vehicles.The Combined Single Limit per occurrence shall not be less than$1,000,000. C. Workers'Compensation Insurance The contractor,its Subcontractors,if any,and all employers providing work,labor,or materials under this Contract that are subject employers under the Oregon Workers'Compensation Law shall comply with ORS 656.017, which requires them to provide workers' compensation coverage that satisfies Oregon law for all their subject workers. Out-of-state employers must provide Oregon workers' compensation coverage for their workers who work at a single location within Oregon for more than 30 days in a calendar year. Contractors who perform work without the assistance or labor of any employee need not obtain workers'compensation coverage. All non-exempt employers shall provide Employer's Liability Insurance with coverage limits of not less than$500,000 each accident. Fanno Creek Tra>Z—Arborist Report and Tree Removal/Protection Plan PSA Page 4 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 Contractor must be underwritten by an insurance company deemed acceptable by the City. The City reserves the right to reject all or any insurance carrier(s)with an unacceptable financial rating. F. Certificates of Insurance As evidence of the insurance coverage required by the contract, the Contractor shall furnish a Certificate of Insurance to the City. No contract shall be effected until the required certificates have been received and approved by the City. The certificate will specify and document all provisions within this contract. A renewal certificate will be sent to the above address 10 days prior to coverage expiration. G. Independent Contractor Status The service or services to be rendered under this contract are those of an independent contractor. Contractor is not an officer, employee or agent of the City as those terms are used in ORS 30.265, H. Primagy Coverage Clarification The parries agree that Contractor's coverage shall be primary to the extent permitted by law. The parties farther 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: Joseph Barrett,Sr.Management Analyst 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 contractor's liability hereunder. Notwithstanding said insurance, Contractor shall be obligated for the total amount of any damage, injury,or loss caused by negligence or neglect connected with this contract. Fanno Creek Trag—Arborist Report and Tree Rmoval/Prowction Plan PSA Wage 5 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 WALTER H.KNAPP&ASSOCIATES,LLC Attn: Jeff Peck,Sr Engineering Tech Attn: Walter H.Knapp Address: 13125 SW Hall Blvd., Address: 7613 SW Dunsmuir Lane Tigard,Oregon 97223 Beaverton,Oregon 97007 Phone: (503}718-2466 Phone: (503)646-4349 Fax: (503)624-0752 Fax: (503}265-8117 Email Address jefQ2 di tiaird-ongov 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 Contractor that does not represent clients on matters contrary to City interests. Further, Contractor shall not engage services of an attorney and/or other professional who individually, or through members of his/her same firm,represents clients on matters contrary to City interests. Should the Contractor represent clients on matters contrary to City interests or engage the services on an attorney and/or other professional who individually, or through members of his/her same firm, represents clients on matters contrary to City interests, Contractor shall consult with the appropriate City representative regarding the conflict After such consultation, the Contractor shall have seven M 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 Contractor. If City terminates the contract pursuant to this paragraph,it shall pay Contractor for services rendered to the date of termination. Fanno Creek Trail—Arborist Report and Tree Removal/Protection Plan PSA Page 6 1 13. TERMINATION WITH CAUSE A. City may terminate this Agreement effective upon delivery of written notice to Contractor,or at such later date as may be established by City,under any of the following conditions: 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 2) If federal or state regulations or guidelines are modified,changed,or interpreted in such a way that the services are no longer allowable or appropriate for purchase under this Agreement. 3) If any license or certificate required by law or regulation to be held by Contractor,its subcontractors, agents, and employees to provide the services required by this Agreement is for any reason denied,revoked,or not renewed. 4) If Contractor becomes insolvent,if voluntary or involuntary petition in bankruptcy is filed by or against Contractor,if a receiver or trustee is appointed for Contractor,or if there is an assignment for the benefit of creditors of Contractor. Any such tern-ination of this agreement under paragraph (a) shall be without prejudice to any obligations or liabilities of either party already accrued prior to such termination. B. City,by written notice of default (including breach of contract) to Contractor, may terminate the whole or any part of this Agreement: I) If Contractor fails to provide services called for by this agreement within the time specified herein or any extension thereof,or 2) If Contractor fails to perform any of the other provisions of this Agreement,or so fails to pursue the work as to endanger performance of this agreement in accordance with its terms, and after receipt of written notice from City, fails to correct such failures within ten(10)days or such other period as City may authorize. 3) If Contractor fails to eliminate a conflict as described in Section 11 of this agreement. The rights and remedies of City provided in the above clause related to defaults (including breach of contract) by Contractor shall not be exclusive and are in addition to any other rights and remedies provided by law or under this Agreement. If City terminates this Agreement under paragraph(b),Contractor shall be entitled to receive as M payment for all services satisfactorily rendered and expenses incurred, an amount which bears the same ratio to the total fees specified in this Agreement as the services satisfactorily rendered by Contractor bear to the total services otherwise required to be performed for such total fee;provided, that there shall be deducted from such amount the amount of damages,if any,sustained by City due to breach of contract by Contractor. Damages for breach of contract shall be those allowed by Oregon law,reasonable and necessary attorney fees,and other costs of litigation at trial and upon appeal. r'anno Cteek'I' il-Arborist Report and Tree Removal/Protection Plan PSA Page 7 ..-..-._.._.. 1 14. ACCESS TO RECORDS City. shall have access to such books, documents, papers and records of Contractor as are directly pertinent to this Agreement for the purpose of making audit,examination,excerpts and transcripts. 15. FORCE MAjEURE in default because of any delays in completion and Neither City nor Contractor shall be considered responsibilities hereunder due to causes beyond the control and without fault or negligence on the part of the parties so disenabled,including but not restricted to,an act of God or of a public enemy,civil unrest, volcano, earthquake, fire, flood, epidemic, quarantine restriction, area-wide strike, freight embargo,unusually severe weather or delay of subcontractor or supplies due to such cause;provided that the parties so disenabled shall within ten (10) days from the beginning of such delay, notify the other party in writing of the cause of delay and its probable extent. Such notification shall not be the basis for a claim for additional compensation. Each party shall,however,make all reasonable efforts to remove or eliminate such a cause of delay or default and shall, upon cessation of the cause,diligently pursue performance of its obligation under the Agreement- 16. greement16. NON-WAIVER The failure of City to insist upon or enforce strict performance by Contractor of anv of the terms of this Agreement or to exercise any rights hereunder should not be construed as a waiver or relinquishment to any extent of its rights to assert or rely upon such terms or rights on any future occasion. 17. NON-DISCRIMINATION Contractor agrees to comply with all applicable requirements of federal and state civil rights and rehabilitation statues, rules, and regulations. Contractor also shall comply with the Americans with Disabilities Act of 1990,ORS 659.425,and all regulations and administrative rules established pursuant to those laws. 18. ERRORS Contractor shall perform such additional work as may be necessary to correct errors in the work required under this Agreement without undue delays and without additional cost. 19. EXTRA(CHANGES)WORK Only the City's Project Manager for this Agreement, Brian Rager, Asst. Public Works Director, may authorize extra (and/or change) work. Failure of Contractor to secure authorization for extra work shall constitute a waiver of all right to adjustment in the contract price or contract time due to such unauthorized extra work and Contractor thereafter shall be entitled to no compensation whatsoever for the performance of such work. 20. WARRAN'T'IES All work shall be guaranteed by Contractor for a period of one year after the date of final acceptance of the work by the owner. Contractor warrants that all practices and procedures, workmanship and materials shall be the best available unless otherwise specified in the profession. Neither acceptance of the work nor payment therefore shall relieve Contractor from liability under warranties contained in or implied by this Agreement Fanno Creek"frail—arborist Report and Tree Removal/Protection flan PSA Page 8 i t. 21. ATTR'S FEES Pthis contract,the parties agree that the In case suit or action*su m h sum a° efOo may adjudge of attorney fees and court costs, losing party shall pay urt including attorney's fees and court costs on appeal. 22. GOVERNING LAW question arising under this Agreement must be The provisions or suits involving any of this Agreement shall be construed in accordance with the Provisions of the laws o A the State of Oregon. Any action of the State of Oregon• brought in the appropriate court 23 COMPLIANCE WITH STATE AND FEDE LAWS RULESand regulations, Contractor shall comply with all applternentse concerning. working hO able fderal, state and local lawrules medical care, including, but not limited to, the requirnts to employees and subcontractors workers compensation insurance,health care payments,pavme and income tax withholding contained in ORS Chapter 219B, the provisions of which are hereby made a part of this agreement. 24. CONFLICT BETWEEN TERMS the insnuinent shall control and It is finrther expressly agreed by andnbethee proposal ofthecontract,this at should there ha any con ct between the terms of this instrument nothing herein shall be considered as an acceptance of the said terms of said proposal conflicting herewith. 25. AUDIT s and conditions of this s within the contract period. Contractor shall maintain records to assure conformance with e ' Agreement,and to assure adequate performance and accurate expenditure diture of the State of Oregon,the federal government,or their duly authorized Contractor agrees to permit City, to this Agreement to assure the accurate expen representatives to audit all records pertaining funds. 26. eE�i2ii.ITY ny In the event any provision or portion of this Agreement ns held °andunenforceableishall not be affected court of competent jurisdiction,the validity of the remaining when they entered into the to the extent that it did not materially affect the intent of the parties agreement. 27, CONDITIONS OF SUPPLYING A PUBLIC AGENCY Contractor labor or ,,.here applicable, seller must make payment promptly as due to persons supe all materials for the execution of the work pusttial Arovided ccident y rl�s oFutid incurred e perfoust yrmance°f�rder* c amounts due from Contractor to the Ind st B er or any subdtvisio n of Contractor shall not pemvt any hen or chasm to ontractor be filed or prosecuted ague further agrees to Pay a to the y City on account of any labor or material to be famished. ant to ORS 31 67, Department of Revenue all sums withheld from employees P $ hours in 2S, HOURS OF LABOR person employed for more than eightT where the If labor is performed under this order,then no r�on shall ca emp any one day,or forty(40)hours in any one week,except in cases of necessity,or emergency Page 9 Fanno Creek TrA— Vborist Report and Tree Removal/Protection Plan PSA 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 Contractor shall promptly,as due,make payment to any person,co-parmership,association or corporation, famishing medical, surgical and hospital care or other needed care and attention incident to sickness or injury, to the employees of such Contractor, of all sums which the Contractor agrees to pay for such services and all moneys and sums which the Contractor collected or deducted from the wages of the employees pursuant to any law, contractor agreement for the purpose of providing or paying for such service. 30. COMPLETE AGREEMENT This Agreement and attached exhibits constitutes the entire 'agreement between the parties. No waiver, consent, modification,or change of terms of this Agreement shall bind either party-unless in writing and signed by both parties. Such waiver, consent, modification, or change if made, shall be effective only in specific instances and for the specific purpose given. There are no understandings, agreements, or representations, oral or written, not specified herein regarding this Agreement. Contractor,by the signature of its authorized representative,hereby acknowledges that he has read this Agreement,understands it and agrees to be bound by its terms and conditions. IN WITNESS WHEREOF,City has caused this Agreement to be executed by its duly authorized undersigned officer and Contractor has executed this Agreement on the date hereinabove first written. CITY OF TIGARD WALTE P&ASSOCIATES,LLC By: Authorized Agent of City By:Authorized g nt of Contractor Date Date Fanno Creek Trail—Arborist Report and Tree Removal/Protection Plan PSA Page 10 EXHIBIT A SERVICES TO BE PROVIDED ARBORIST REPORT&TREE REMOVAL/PROTECTION PLAN 1. Contractor shall identifv trees 6"dbh or larger within a 50-foot swath of the proposed trail alignment on all subject properties. 2. Contractor shall prepare a Tree plan per City of Tigard Code 18.790.030. The report will document the general condition of individual trees, provide arborist recommendations for tree retention and removal include recommendations for tree protection during and after construction for trees recommended for retention, and describe the City's mitigation requirements for tree removal. The report will address the City's regulations for tree removal on sensitive lands, which require a tree removal permit per City of Tigard Code 18.790.050. 3. Contractor shall conduct tree protection monitoring during construction when work is occurring adjacent to protected trees. Each site visit will be followed with a tree protection inspection report documenting the condition of tree protection measures and providing recommendations for tree protection as needed. 4. Contractor shall perform site visits to verify installation of tree protection measures and provide recommendations for tree protection as needed. A final inspection will be required to document the condition of trees following construction and to provide recommendations for long-terns tree care. Assume four(4) site visits will be required to complete the arborist services. 5. Contractor shall attach numbered aluminum tags and plastic ribbon to trees that are recommended for removal for safety or construction. Contractor will also tag and flag trees outside the 50' swath in situations where able to clearly identify a hazard to trail users. Please note that this will not be a comprehensive,all-inclusive assessment of trees outside the 50'examination corridor. 6. The hourly rate charge by the Contractor to the City shall be 5125/hour. The total lump sum cost to the City for the project is$1,690. Fanno Creek Trai —Arbork Report and Tree Removal/Protection Plan PSA Page 11 .._.......... ... .. .