ODOT - Pacific Hwy, Greenburg Rd, Main St Misc. Contracts & Agreements
No.26200
INTERGOVERNMENTAL AGREEMENT
FOR RIGHT OF WAY SERVICES
Pacific Highway West and SW Greenburg Road/SW Main Street
THIS 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"; and the CITY OF TIGARD, acting by and through its elected officials,
hereinafter referred to as "Agency," hereinafter individually referred to as the "Party"
and collectively referred to as the "Parties."
RECITALS
1. By the authority granted in ORS 190.110, 283.110, 366.572 and 366.576, state
agencies may enter into agreements with units of local government or other state
agencies 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. By the authority granted in ORS 366.425, State may accept deposits of money or an
irrevocable letter of credit from any county, city, road district, person, firm, or
corporation for the performance of work on any public highway within the State. When
said money or a letter of credit is deposited, State shall proceed with the Project.
Money so deposited shall be disbursed for the purpose for which it was deposited.
3. That certain SW Greenburg Road, which becomes SW Main Street after crossing
Pacific Highway West (99W) is a part of the City Street System under the jurisdiction
and control of Agency and Agency may enter into an agreement for the acquisition of
real property.
4. Pacific Highway West (99W), is a part of the state highway system under the
jurisdiction and control of the Oregon Transportation Commission (OTC).
5. This Agreement shall define roles and responsibilities of the Parties regarding the real
property to be used as part of right of way for road, street .or construction of public
improvement. The scope and funding may be further described in Cooperative
Improvement Agreement number 26,189. Hereinafter, all acts necessary to
accomplish services in this Agreement shall be referred to as "Project."
NOW THEREFORE, the premises being in general as stated in the foregoing recitals, it is
agreed by and between the Parties hereto as follows:
R/W Services IGA(Revised July 2009) _ 1 _
i
TERMS OF AGREEMENT
1. Under such authority, State and Agency agree to perform certain right of way activities
shown in Special Provisions - Exhibit A, attached hereto and by this reference made a
part hereof. If the State performs right of way services on behalf of the Agency, under
no conditions shall Agency's obligations for said services exceed a maximum of
$10,000, including all expenses, unless agreed upon by both Parties.
2. The work shall begin on the date all required signatures are obtained and shall be
completed no later than ten (10) calendar years, on which date this Agreement
automatically terminates unless extended by a fully executed amendment.
3. The process to be followed by the Parties in carrying out this Agreement is set out in
Exhibit A.
4. It is further agreed both Parties will strictly follow the rules, policies and procedures of
the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970,
as amended, ORS Chapter 35 and the "State Right of Way Manual".
STATE OBLIGATIONS
1. State shall perform the work described in Special Provisions - Exhibit A.
2. With the exception of work related to appraisals, State shall not enter into any
subcontracts for any of the work scheduled under this Agreement without obtaining
prior written approval from Agency.
3. If the State performs right of way services on behalf of the Agency, State shall perform
the service under this Agreement as an independent contractor and shall be
exclusively responsible for all costs and expenses related to its employment of
individuals to perform the work under this Agreement including, but not limited to,
retirement contributions, workers compensation, unemployment taxes, and state and
federal income tax withholdings.
4. State's right of way contact person for this Project is Matthew Gossett, Region 1 Right
of Way Project Manager, 123 NW Flanders Street, Portland, OR 97209, 503-731-
8425, matthew.c.gossett@odot.state.or.us, or assigned designee upon individual's
absence.
AGENCY OBLIGATIONS
1. Agency shall perform the work described in Special Provisions - Exhibit A.
26200 - 2 -
2. Agency certifies, at the time this Agreement is executed, that sufficient funds are
available and authorized for expenditure to finance costs of this Agreement within
Agency's current appropriation or limitation of current budget. Agency is willing and
able to finance all, or its pro-rata share of all, costs and expenses incurred in the
Project up to its maximum.
3. Agency may utilize its own staff or subcontract any of the work scheduled under this
Agreement provided Agency receives prior written approval of any staff, consultant or
contractor by the State's Region Right of Way office.
4. Agency represents that this Agreement is signed by personnel authorized to do so on
behalf of Agency.
5. Agency's right of way contact person for this Project is the Tigard City Engineer,
13125 SW Hall Blvd, Tigard, OR 97223, or assigned designee upon individual's
absence.
PAYMENT FOR SERVICES AND EXPENDITURES:
1. In consideration for the services performed by State (as identified in the attached
Exhibit A), Agency agrees to pay or reimburse State a maximum amount of $10,000.
Said maximum amount shall include reimbursement for all expenses, including
travel expenses. Travel expenses shall be reimbursed to State in accordance with
the current Oregon Department of Administrative Services' rates. Any expenditure
beyond federal participation will be from, or reimbursed from, Agency funds.
Payment in Agency and/or federal funds in any combination shall not exceed said
maximum, unless agreed upon by both Parties.
2. Agency agrees to reimburse salaries and payroll reserves of State employees working
on Project, direct costs, costs of rental equipment used, and per-diem expenditures.
GENERAL PROVISIONS:
1. This Agreement may be terminated by either Party upon thirty (30) days' notice, in
writing and delivered by certified mail or in person, under any of the following
conditions:
a. If either Party fails to provide services called for by this Agreement within the
time specified herein or any extension thereof.
b. If either Party 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 fails to correct such
failures within ten (10) days or such longer period as may be authorized.
26200 - 3 -
' 7
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 State is
prohibited from paying for such work from the planned funding source.
2. Any termination of this Agreement shall not prejudice any rights or obligations
accrued to the Parties prior to termination.
3. Agency acknowledges and agrees that State, the Oregon Secretary of State's
Office, the federal government, and their duly authorized representatives shall have
access to the books, documents, papers, and records of Agency which are directly
pertinent to this Agreement for the purpose of making audit, examination, excerpts,
and transcripts for a period of six (6) years after final payment. Copies of applicable
records shall be made available upon request. Payment for costs of copies is
reimbursable by State.
4. Agency shall comply with all federal, state, and local laws, regulations, executive
orders and ordinances applicable to the work under this Agreement, including,
without limitation, the provisions of ORS 279B.220, 2798.225, 279B.230, 279B.235
and 279B.270 incorporated herein by reference and made a part hereof. Without
limiting the generality of the foregoing, Agency expressly agrees to comply with (i)
Title VI of Civil Rights Act of 1964; (ii) Title V and Section 504 of the Rehabilitation
Act of 1973; (iii) the Americans with Disabilities Act of 1990 and ORS 659A.142; (iv)
all regulations and administrative rules established pursuant to the foregoing laws;
and (v) all other applicable requirements of federal and state civil rights and
rehabilitation statutes, rules and regulations.
5. All employers, that employ subject workers who work under this Agreement in the
State of Oregon shall comply with ORS 656.017 and provide the required workers'
compensation coverage unless such employers are exempt under ORS 656.126.
Both Parties shall ensure that each of its subcontractors complies with these
requirements.
6. Both Parties shall, to the extent permitted by the Oregon Constitution and the
Oregon Tort Claims Act, indemnify, defend, save, and hold harmless each other,
their officers and employees from any and all claims, suits, or actions of any nature
arising out of activities of the indemnifying Party, its officers, employees or agents in
their respective performance under this Agreement.
26200 - 4 -
7. Notwithstanding the foregoing defense obligations under the paragraph above,
neither Party nor any attorney engaged by either Party shall defend any claim in the
name of the other Party or any agency/department/division of such other Party, nor
purport to act as legal representative of the other Party or any of its
agencies/departments/divisions, without the prior written consent of the legal
counsel of such other Party. Each Party may, at anytime at its election assume its
own defense and settlement in the event that it determines that the other Party is
prohibited from defending it, or that other Party is not adequately defending it's
interests, or that an important governmental principle is at issue or that it is in the
best interests of the Party to do so. Each Party reserves all rights to pursue any
claims it may have against the other if it elects to assume its own defense.
8. If federal funds are involved in this Agreement, Exhibits B and C are attached hereto
and by this reference made a part of this Agreement, and are hereby certified to by
Agency.
9. If federal funds are involved in this Agreement, Agency, as a recipient of federal
funds, pursuant to this Agreement with the State, 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 the Federal Highway
Administration, 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.
10.The Parties 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.
11.This Agreement may be executed in several counterparts (facsimile or otherwise) 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.
12.This Agreement and attached exhibits constitute the entire agreement between the
Parties on the subject matter hereof. 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
26200 - 5 -
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.
THE PARTIES, by execution of this Agreement, hereby acknowledge that each Party
has read this Agreement, understands it, and agrees to be bound by its terms and
conditions.
The Oregon Transportation Commission on May 20, 2009, approved Delegation Order
No. 3, which authorizes the Director and Deputy Director, Highways to approve and
execute all agreements pertaining to real property transactions.
On July 7, 2005, the Director and Deputy Director, Highways approved Subdelegation
Order No. 4, in which the Director and Deputy Director, Highways delegates authority to
the Technical Services Manager/Chief Engineer to approve and execute all agreements
pertaining to real property transactions.
Signature Page to Follow
26200 - 6 -
Pursuant to a Letter of Authority dated August 3, 2005, the Technical Services
Manager/Chief Engineer authorized the State Right of Way Manager to approve and sign
all Department real property deeds, contracts, agreements, and other documents
pertaining to real property transactions and to approve and execute agreements with
other governmental jurisdictions to employ Right of Way Section staff.
CITY OF TIGARD, by and thr STATE OF OREGON, by and through
its City Co ciI its Depa ent of Transportation
By - By
City ,c 01aA4 -rA StateRight of Way M ager
Date o� �� / 0 Date J�,;�9L16
By APPROVALRECOMMENDED
—
Date Region 1 Right of Way Manager
APPROVED AS TO LEGAL Date ( I(9 2-010
SUFFICIENCY
,J By
n/a
Z�itAttorney
Date
1 c/j D Date
Agency Contact: APPROVED AS TO LEGAL SUFFICIENCY
Tigard City Engineer By n/a
13125 SW Hall Blvd Assistant Attorney General
Tigard, OR 97223
503-639-4171 Date:
State Contact:
Sam Hunaidi
123 NW Flanders Street
Portland, OR 97209
503-731-8472
sam.h.hunadi@odot.state.or.us
26200 - 7 -
SPECIAL PROVISIONS EXHIBIT A
Right of Way Services
THINGS TO BE DONE BY STATE OR AGENCY
1. Pursuant to this Agreement, the work performed on behalf of the Agency can be
performed by the Agency, the Agency's consultant, or a State Flex Services
consultant. The work may be performed by Agency staff or any of these
representatives on behalf of Agency individually or collectively provided they are
qualified to perform such functions and after receipt of approval from the State's
Region 1 Right of Way Manager. Said approval must be obtained, in writing, prior to
the performance of said activities.
2. With the exception of work related to appraisals, State shall not enter into any
subcontracts for any of the work scheduled under this Agreement without obtaining
prior written approval from Agency.
3. Both Parties will strictly follow the rules, policies and procedures of the Uniform
Relocation Assistance and Real Property Acquisition Policies Act of 1970, as
amended, ORS Chapter 35 and the "State Right of Way Manual".
Instructions: Insert either: State, Agency, or N/A on each line.
A. Preliminary Phase
1. Agency shall provide preliminary cost estimates.
2. Agency shall make preliminary contacts with property owners.
3. Agency shall gather and provide data for environmental documents.
4. Agency and State shall develop access and approach road list.
5. Agency shall help provide field location and Project data.
B. Acquisition Phase
1. General:
a. When doing the Acquisition work, Agency shall provide State with a status
report of the Project quarterly.
b. Title to properties acquired shall be in the name of the Agency.
26200 - 8 -
c. Prior to the initiation of acquisitions, if title to the properties is to be acquired in
the name of the Agency, the Agency shall adopt a resolution of intention and
determination of necessity in accord with ORS 35.610, authorizing acquisition
and condemnation. If the Oregon Department of Justice is to handle
condemnation work, that information needs to be included in the resolution
adopted by the Agency. Prior approval by Oregon Department of Justice is
required.
2. Legal Descriptions:
a. Agency shall provide sufficient horizontal control, recovery and retracement
surveys, vesting deeds, maps and other data so that legal descriptions can be
written.
b. Agency shall provide construction plans and cross-section information for the
Project.
c. Agency shall write legal descriptions and prepare right of way maps. If the
Agency acquires any right of way on a State highway, the property descriptions
and right of way maps shall be based upon centerline stationing and shall be
prepared in accordance with the current "State Right of Way & Rail/Utility
Coordination Manual", "Contractor Services Guide" and the "Right of Way
Engineering Manual". The preliminary and final versions of the property
descriptions and right of way maps must be reviewed and approved by the
State.
d. Agency shall specify the degree of title to be acquired (e.g., fee, easement).
3. Real Property and Title Insurance:
a. Agency shall provide preliminary title reports, if State determines they are
needed, before negotiations for acquisition commence.
b. Agency shall determine sufficiency of title (taking subject to). If the Agency
acquires any right of way on a State highway, sufficiency of title (taking subject
to) shall be determined in accordance with the current "State Right of Way
Manual" and the "Contractor Services Guide". Agency shall clear any
encumbrances necessary to conform to these requirements, obtain Title
Insurance policies as required and provide the State copies of any title policies
for the properties acquired.
c. Agency shall conduct a Level 1 Hazardous Materials Study within project
limits to detect presence of hazardous materials on any property purchase,
26200 - 9 -
excavation or disturbance of structures, as early in the project design as
possible, but at a minimum prior to property acquisition or approved design.
d. Agency shall conduct a Level 2 Site Investigation of sufficient scope to
confirm the presence of contamination, determine impacts to properties and
develop special provisions and cost estimates, if the Level 1 Corridor study
indicates the potential presence of contamination that could impact the
properties.
e If contamination is found, a recommendation for remediation will be
presented to State.
e. Agency shall be responsible for arrangement of any necessary remediation.
f. Agency shall conduct asbestos, lead paint and other hazardous materials
surveys for all structures that will be demolished, renovated or otherwise
disturbed. Asbestos surveys must be conducted by an AHERA (asbestos
hazard emergency response act) certified inspector.
4. Appraisal:
a. Agency shall conduct the valuation process of properties to be acquired.
b. Agency shall perform the Appraisal Reviews.
c. Agency shall recommend Just Compensation, based upon a review of the
valuation by qualified personnel.
5. Negotiations:
a. Agency shall tender all monetary offers to land-owners in writing at the
compensation shown in the appraisal review. Conveyances taken for more or
less than the approved Just Compensation will require a statement justifying
the settlement. Said statement will include the consideration of any property
trades, construction obligations and zoning or permit concessions. If State
performs this function, it will provide the Agency with all pertinent letters,
negotiation records and obligations incurred during the acquisition process.
b. State and Agency shall determine a date for certification of right of way and
agree to cosign the State's Right of Way Certification form. State and Agency
agree possession of all right of way shall occur prior to advertising of any
construction contract, unless appropriate exceptions have been agreed to by
Agency and State.
26200 - 10 -
c. Agency agrees to file all Recommendations for Condemnation at least seventy
(70) days prior to the right of way certification date if negotiations have not
been successful on those properties.
6. Relocation:
a. Agency shall perform any relocation assistance, make replacement housing
computations, and do all things necessary to relocate any displaced Parties on
the Project.
b. Agency shall make all relocation and moving payments for the Project.
c. Agency shall perform the relocation appeal process.
C. Closing Phase
1. Agency shall close all transactions. This includes the construction of deeds,
releases and satisfactions necessary to clear title, obtaining signatures on release
documents, and making all payments.
2. Agency shall record conveyance documents, only upon acceptance by appropriate
agency.
D. Property Management
1. Agency shall take possession of all the acquired properties. There shall be no
encroachments of buildings or other private improvements allowed upon the State
highway right of way.
2. Agency shall dispose of all improvements and excess land.
E. Condemnation
1. N/A may offer mediation if the Parties have reached an impasse.
2. Agency shall perform all administrative functions in preparation of the
condemnation process, such as preparing final offer and complaint letters.
3. Agency shall perform all legal work related to the condemnation process. (If State
is doing this for another agency, the Oregon Department of Justice must approve
in advance).
26200
4. Agency shall perform all litigation work related to condemnation. (If State is doing
this for another agency, the Oregon Department of Justice must approve in
advance).
F. Transfer of Right of Way to State
If applicable, Agency agrees to transfer to the State all right of way acquired on the State
highway which was acquired in the Agency's name. The specific method of conveyance
will be determined by the Agency and the State at the time of transfer and shall be
coordinated by the State's Region Right of Way Manager. Agency agrees to provide the
State all information and file documentation the State deems necessary to integrate the
right of way into the State's highway system. At a minimum, this includes: copies of all
recorded conveyance documents used to vest title in the name of the Agency during the
right of way acquisition process, and the Agency's Final Report or Summary Report for
each acquisition file that reflects the terms of the acquisition and all agreements with the
property owner(s).
26200 - 12 -