ODOT - Red Rock Creek Tr Alignment Misc. Contracts and Agreements
No. 35123
A156-G080719
ODOT Delivered Project Federal Project
On Behalf of City of Tigard
Project Name: Red Rock Creek Tr Alignment Study: Fanno Ck Tr-SW 64th
Key Number: 22136
THIS AGREEMENT ("Agreement") is made and entered into by and between the STATE OF
OREGON, acting by and through its Department of Transportation, hereinafter referred to as
"State" or "ODOT," and the CITY OF TIGARD, acting by and through its elected officials,
hereinafter referred to as "Agency," both herein referred to individually as "Party" or collectively
as "Parties."
RECITALS
1. By the authority granted in Oregon Revised Statute (ORS) 190.110, 366.572 and 366.576,
state agencies may enter into cooperative agreements with counties, cities and units of local
governments for the performance of any or all functions and activities that a party to the
Agreement, its officers, or agents have the authority to perform
2. Fanno Creek Trail to SW 64th Street is a part of the city street system under the jurisdiction
and control of Agency.
3. Agency has agreed that State will deliver this project on behalf of the Agency.
4. The Project was selected as a part of the RFFA Program (Regional Flexible Funds
Allocation) and may include a combination of federal and state funds. "Project" is defined
under Terms of Agreement, paragraph 1 of this Agreement.
5. The Stewardship and Oversight Agreement On Project Assumption and Program Oversight
By and Between Federal Highway Administration, Oregon Division and the State of Oregon
Department of Transportation ("Stewardship Agreement") documents the roles and
responsibilities of the State with respect to project approvals and responsibilities regarding
delivery of the Federal Aid Highway Program. This includes the State's oversight and
reporting requirements related to locally administered projects. The provisions of that
agreement are hereby incorporated and included by reference.
NOW THEREFORE the premises being in general as stated in the foregoing Recitals, it is
agreed by and between the Parties hereto as follows:
TERMS OF AGREEMENT
1. Under such authority, Agency and State agree to State delivering a feasibility study for the
Red Rock Trail alignment on behalf of Agency, hereinafter referred to as "Project." Project
includes implementation of the Red Rock Trail alignment feasibility study from Fanno Creek
Trail to SW 64th Street (approximately 2 miles) to identify and evaluate preliminary
alignments and develop preliminary cost assessments. The trail will provide active
transportation options and overcome significant barriers to connectivity within the area. The
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Agreement No. 35123
location of the Project is approximately as shown on the map attached hereto, marked
"Exhibit A," and by this reference made a part hereof.
2. Agency agrees that, if State hires a consultant to design the Project, State will serve as the
lead contracting agency and contract administrator for the consultant contract related to the
work under this Agreement.
3. The total Project cost is estimated at $350,000.00, which is subject to change. Federal
funds for this Project shall be limited to $314,055.00. Agency shall be responsible for all
remaining costs, including any non-participating costs, all costs in excess of the federal
funds, and the 10.27 percent match for all eligible costs. Any unused funds obligated to this
Project will not be paid out by State, and will not be available for use by Agency for this
Agreement or any other projects. "Total Project Cost"means the estimated cost to complete
the entire Project, and includes any federal funds, state funds, local matching funds, and
any other funds.
4. Federal funds under this Agreement are provided under Title 23, United States Code.
5. ODOT considers Agency to be a third party under this Agreement. The Catalog of Federal
Domestic Assistance (CFDA) number for this Project is 20.205, title Highway Planning and
Construction.
6. With the exception of Americans with Disabilities Act of 1990 (ADA) related design
standards and exceptions, State shall consult with Agency on Project decisions that impact
Total Project Cost involving the application of design standards, design exceptions, risks,
schedule, and preliminary engineering charges, for work performed on roadways under
local jurisdiction. State will allow Agency to participate in regular meetings and will use all
reasonable efforts to obtain Agency's concurrence on plans. State shall consult with Agency
prior to making changes to Project scope, schedule, or budget. However, State may award
a construction contract at ten (10) percent (%) over engineer's estimate without prior
approval of Agency.
7. State will submit the requests for federal funding to Federal Highway Administration
(FHWA). The federal funding for this Project is contingent upon approval of each funding
request by FHWA. Any work performed outside the period of performance or scope of work
approved by FHWA will be considered nonparticipating and paid for at Agency expense.
8. Agency guarantees the availability of Agency funding in an amount required to fully fund
Agency's share of the Project.
9. The term of this Agreement shall begin on the date all required signatures are obtained and
shall terminate upon completion of the Project and final payment or ten (10) calendar years
following the date all required signatures are obtained, whichever is sooner.
10.This Agreement may be terminated by mutual written consent of both Parties.
11.State may terminate this Agreement effective upon delivery of written notice to Agency, or at
such later date as may be established by State, under any of the following conditions:
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a. If Agency fails to provide services called for by this Agreement within the time specified
herein or any extension thereof.
b. If Agency 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 State fails to correct such failures within
ten (10) days or such longer period as State may authorize.
c. If Agency fails to provide payment of its share of the cost of the Project.
d. If State fails to receive funding, appropriations, limitations or other expenditure authority
sufficient to allow State, in the exercise of its reasonable administrative discretion, to
continue to make payments for performance of this Agreement.
e. If federal or state laws, regulations or guidelines are modified or interpreted in such a
way that either the work under this Agreement is prohibited or if State is prohibited from
paying for such work from the planned funding source.
12.Any termination of this Agreement shall not prejudice any rights or obligations accrued to the
Parties prior to termination.
13.Information required by 2 Code of Federal Regulation (CFR)200.331(a)(1)shall be contained
in the USDOT FHWA Federal Aid Project Agreement for this Project, a copy of which shall
be provided by ODOT to Agency with the Notice to Proceed.
14.Americans with Disabilities Act Compliance:
a. The Parties shall utilize ODOT standards to assess and ensure that the Project and
all component activities comply with Section 504 of the Rehabilitation Act of 1973
and the Americans with Disabilities Act of 1990 as amended (together, "ADA"),
including ensuring that all plans and proposed alternatives for future design or
construction of pedestrian, bicycle, and transit routes and facilities will result in ADA-
compliant facilities and improvements.
b. Agency shall ensure that temporary pedestrian routes are provided through or
around any Project work zone where Agency is performing work. Any such
temporary pedestrian route shall include directional and informational signs, comply
with ODOT standards, and include accessibility features equal to or better than the
features present in the existing pedestrian facility. Agency shall also ensure that
advance notice of any temporary pedestrian route is provided in accessible format
to the public, people with disabilities, and disability organizations at least 10 days
prior to the establishment of any work zone.
15.State shall ensure compliance with the Cargo Preference Act and implementing regulations
(46 CFR Part 381) for use of United States-flag ocean vessels transporting materials or
equipment acquired specifically for the Project. Strict compliance is required, including but
not limited to the clauses in 46 CFR 381.7(a) and (b) which are incorporated by
reference. State shall also include this requirement in all contracts and ensure that
contractors include the requirement in their subcontracts.
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16.Agency grants State the right to enter onto Agency right of way for the performance of duties
as set forth in this Agreement.
17.The Special and Standard Provisions attached hereto, marked Attachments 1 and 2,
respectively, are by this reference made a part hereof. The Standard Provisions apply to all
federal-aid projects and may be modified only by the Special Provisions. The Parties hereto
mutually agree to the terms and conditions set forth in Attachments 1 and 2. In the event of
a conflict, this Agreement shall control over the attachments, and Attachment 1 shall control
over Attachment 2.
18.Agency shall assume sole liability for Agency's breach of any federal statutes, rules,
program requirements and grant provisions applicable to the federal funds, and shall, upon
Agency's breach of any such conditions that requires the State to return funds to FHWA,
hold harmless and indemnify the State for an amount equal to the funds received under this
Agreement; or if legal limitations apply to the indemnification ability of Agency, the
indemnification amount shall be the maximum amount of funds available for expenditure,
including any available contingency funds or other available non-appropriated funds, up to
the amount received under this Agreement.
19.State and Agency hereto agree that if any term or provision of this Agreement is declared
by a court of competent jurisdiction to be invalid, unenforceable, illegal or in conflict with
any law, the validity of the remaining terms and provisions shall not be affected, and the
rights and obligations of the Parties shall be construed and enforced as if the Agreement
did not contain the particular term or provision held to be invalid.
20.Agency certifies and represents that the individual(s) signing this Agreement has been
authorized to enter into and execute this Agreement on behalf of Agency, under the
direction or approval of its governing body, commission, board, officers, members or
representatives, and to legally bind Agency.
21.This Agreement may be executed in several counterparts all of which when taken together
shall constitute one agreement binding on all Parties, notwithstanding that all Parties are
not signatories to the same counterpart. Each copy of this Agreement so executed shall
constitute an original.
22.This Agreement and attached exhibits constitute the entire agreement between the Parties
on the subject matter hereof. In the event of conflict, the body of this Agreement and the
attached exhibits will control over Project application and documents provided by Agency
to State. There are no understandings, agreements, or representations, oral or written, not
specified herein regarding this Agreement. No waiver, consent, modification or change of
terms of this Agreement shall bind either party unless in writing and signed by both Parties
and all necessary approvals have been obtained. Such waiver, consent, modification or
change, if made, shall be effective only in the specific instance and for the specific purpose
given. The failure of State to enforce any provision of this Agreement shall not constitute a
waiver by State of that or any other provision. Notwithstanding this provision, the Parties
may enter into a Right Of Way Services Agreement in furtherance of the Project.
23.State's Contract Administrator for this Agreement is Justin Bernt, R1 Local Agency Liaison,
123 NW Flanders Street, Portland, Oregon 97209-4012, (503) 731-3016,
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Agreement No. 35123
iustin.j.bernt anodot.state.or.us, or assigned designee upon individual's absence. State shall
notify the other Party in writing of any contact information changes during the term of this
Agreement.
24.Agency's Contract Administrator for this Agreement is Gary Pagenstecher, AICP CUD
Project Planner, Urban Design, 13125 SW Hall Blvd., Tigard, OR 97223, 503-956-9430,
Garyp(cD-tigard-or.gov, or assigned designee upon individual's absence. Agency shall
notify the other Party in writing of any contact information changes during the term of this
Agreement.
SIGNATURE PAGE TO FOLLOW
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Agreement No. 35123
SPECIAL PROVISIONS
1. State or its consultant shall conduct all work components necessary to complete the Project,
except for those responsibilities specifically assigned to Agency in this Agreement. State
will perform project management and oversight activities throughout the duration of the
Project. The cost of such activities will be billed to the Project.
2. State and Agency agree that the useful life of this Project is defined as ten (10) years.
3. If Agency fails to meet the requirements of this Agreement or the underlying federal
regulations, State may withhold the Agency's proportional share of Highway Fund
distribution necessary to reimburse State for costs incurred by such Agency breach.
Agency will be ineligible to receive or apply for any Title 23, United States Code funds until
State receives full reimbursement of the costs incurred.
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THE PARTIES, by execution of this Agreement,hereby acknowledge that their signing
representatives have read this Agreement, understand it, and agree to be bound by its terms
and conditions.
This Project is in the 2021-2024 Statewide Transportation Improvement Program (STIP), (Key
622136) that was adopted by the Oregon Transportation Commission on July 15, 2020 (or
subsequently by amendment to the STIP).
CITY OF TIGARD, by and through its STATE OF OREGON,by and through
elected officials its Depa ent of Transportation
By _t}r_ By
Delivery&Operations Division Administrator
Title City Manager
Date 06/22/2021
Date June 17.2021 APPROVAL RECOMMENDED
By By,-'tel/�✓- —�
Region 1 Manager
Title Date �,-•z 2-acs 1
Date APPROVED AS TO LEGAL
LEGAL REVIEW APPROVAL SUFFICIENCY
(ff required in Agency's process) By Herbert Lovejoy via entail
By Assistant Attorney General
Agency Counsel Date6/1121
Date State Contact:
Agency Contact: Justin Bernt
Gary Pagenstecher, AICD CUD Project Region 1 Local Agency Liaison
Planner, Urban Design Oregon Department of Transportation
13125 SW Hall Blvd. 123 NVQ Flanders St
Tigard, OR 97223 Pordand Oregon,97209-4012
503-956-9430 503-731-3016
Garyp(MtiQard-or._qov iustin.i.bemtlModotstate.or.us
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Agreement No. 35123
EXHIBIT A— Project Location Map
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Community Oe velopmeni N
1Jf26 SW Hatt Bivd M Transit Stations =Proposed Pedestrian/Bike&'idges
TigardOregwi 97223 /'V Existing Regional Trails 1
e 503-7,18-2434 ®Proposed Red Rock Creek Trail Alignment
Proposed Regional Trail Extension
www.tigard•or.gov Private Property Letters of Support
/` 'Existing/Approved Local Trails y
Date:6!2012019 SWC LRT LPA Alignment Proposed 70th St Connector
ATTACHMENT NO. 1 to AGREEMENT NO. 35123
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