Resolution No. 91-46 CITY OF TIGARD, OREGON
RESOLUTION NO. 91- t
A RESOLUTION AUTHORIZING THE CITY ADMINISTRATOR TO ENTER INTO A
COOPERATIVEGREEM..�''..NiT BETWEEN THE CITY OF TIGARD, THE CITY OF
BEAVERTON AND NESBITT PARTNERS PORTLAND VENTURE LTD, A CALSFORNIA
LIMITED PARTNERSHIP, IN ORDER TO CONSTRUCT AND FINANCE A
REPLACEMENT SEWER LINE.
WHEREAS the owners of the Embassy Suites Hotel, Nesbitt Partners
Portland Venture LLd_, a California Limited Partnership (here after
referred to as Nesbitt) are desirous of expanding the Embassy
Suites Hotel, which is located within the City of Tigard; and
WHEREAS it has been determined that the capacity of a portion of
the sewer line section which would serve this hotel expansion (i.e
sections B through J of the SPRR Trunk line) is of inadequate
capacity, and must be replaced with a larger capacity sewer line;
and
WHEREAS that sewer line section which needs to be replaced is part
of the City of Beaverton's sewerage system; and
WHEREAS requiring Nesbitt to replace the entire section of` sewer
line would be substantially more than Nesbitt's fair share, and
would jeopardize the expansion of the hotel; and
WHEREAS the City of Beaverton, the City of Tigard, and Nesbitt
would all derive benefit from a construction project that would
replace the necessary sections of the SPRR Trunk sewer line; and
WHEREAS a proposed agreement has been reached between
representatives of the three parties involved which specifies an
arrangement under which the design, construction and financing of
the sewer line replacement project would be accomplished; and
WHEREAS the proposed agreement includes a financial contribution by
the City of Tigard towards the construction project, as well as an
intergovernmental loan to the City of Beaverton, and therefore
requires that the City Council of the City of Tigard authorize the
City Administrator to execute said proposed agreement; and
WHEREAS there is a public need and benefit to entering into said
agreement; now
RESOLUTION NO. 91-Uts
Page 1
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NOW, THEREFORE,', BE IT RESOLVED by the Tigard City Council that:
The City Administrator is hereby authorized to enter into a
cooperative agreement with the City of Beaverton and Nesbitt
Partners Portland Ventures Ltd., said agreement being attached to
this Resolution as Exhibit 'A'.
PASSED: This day of ''�-{=�� , 19
J
]a'-.lr7 E- City of Tigard
ATTEST:
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City Recorder - City of Tigard
RESOLUTION NO. 91-
Page 2
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COOPERATIVE INTERGOVERNMENTAL AGREEMENT
This agreement is made and entered into by and between the
CITY
ITY
OF
BEAVERTON, an Oregon municipal corporation ("Beaverton"and the
CITT
OF TIGARD, an Oregon municipal corporation ("Tigard") ,
PARTNERS PORTLAND VENTURE I,TD., a California Limited Partnership
("Nesbitt")
WITNESSETH
RECITALS:
Beaverton and Tigard are desirous of a contractual relationship
with Nesbitt whereby Nesbitt would be responsible for the design
and construction of a sewer, line, to replace the SPRR Trunk sewer
line sections B through J to servea the assy land Suites
approval
expansion located in Tigard, tate subject
known as SDR 90-0025. Beaverton will benefit from the construction
project as the line that will be replaced is in Beaverton and will
increase the capacity of the replacement sewer line. Beaverton
will further benefit by being advanced funds from Tigard for the
payment of Beaverton's share of construction. Beaverton will
reimburse Tigard fully within two years of the advance of funds.
Nesbitt will benefit in that design and reconstructrovalons of the
of the
sewer line will meet a condition of the development app
hotel expansion.
Tigard will benefit from the development of the hotel expansion
within Tigard's city limits. Nesbitt will benefit by being able
to proceed with the expansion of the hotel in a timely manner with
financial assistance from the two cities. Beaverton and-Tigard
acknowledge that they have the authority to execute this
Intergovernmental Cooperative Agreement pursuant to ORS 190.003 to
190.030.
NOW, THEREFORE, the premises being generally as stated in the
foregoing recital, it is agreed by and between the parties hereto
as follows:
1) Effective Date. This agreement shall take effect on the data
it is executed by all parties. It will remain in effect until
Beaverton has fully repaid the City of Tigard.
2) Nesbitt es onsibilities. Nesbitt will design the SPRR Trunk
sewer line replacement and construct the line in accordance
with approved plans. Nesbitt agrees to pay all costs of
construction and then request payment from Tigard for
Beaverton and Tigard's shares. Nesbitt agrees to contribute
$28,000 of its own funds, pay the Unified Sewerage Agency
share of theconstructir charge oTigard the SPRR(whichwill
sewer line and
rd the
payment to BSA)A) ,
1 - COOPERATIVE INTERGOVERNMENTAL AGREEMENT
dedicate the sewer line to Beaverton upon completion and
acceptance. Nesbitt will pay the prevailing wage required for
this work and will certify its payroll to the Oregon Bureau
of Labor and Industries. Nesbitt will account for all costs
re3ated to engineering and construction of the sewer line
including but not limited to design fees, insurance, bonds,
and attorney's fees and provide an accounting to both cities
as requested by the cities in a form requested by Beaverton
and Tigard. Nesbitt's books and records related to this
project shall be available to either city upon request for a
period of two years following completion of the line. Nesbitt
agrees that any cost savings and overruns shall be identified
as soon as feasible and shall be shared with Beaverton and
Tigard according to the percentage of participation of the
parties shown in section five. Beaverton and Tigard shall
have the right to approve or disapprove any change orders
which could result in cost savings or overruns, such approval
shall not be unreasonably withheld.
Nesbitt assumes all risks related to construction of the sewer
line. If any delays in construction or sewer line
inspection/acceptance z)ccur which delay T.igard's issuance of
an occupancy permit for the hotel expansion, Nesbitt agrees
to waive the right to sue either city unless such delays are
attributable to a wrongful or unreasonable act of either city.
Nesbitt is required to post a bond with the City of Beaverton
for construction of the SPRR Trunk Sewer line. Nesbitt is
responsible for obtaining all permits from Beaverton, Tigard,
Oregon Division of State Lands, Southern Pacific Railroad, and
the Oregon Department of Transportation. Nesbitt holds
Beaverton and Tigard harmless from and indemnifies both cities
for any failure by Nesbitt to pay the prevailing wage or
certify its payroll to the Oregon Bureau of Labor and
Industries.
3) Beaverton Responsibilities. Beaverton agrees to finance a
portion of the cost of replacing the SPRR Trunk sewer line
sections B through J in the amount of approximately $140,000.
Beaverton shall reimburse Tigard by forwarding to Tigard
$40,000 within thirty (30) days of Tigard advancing $40,000
to Nesbitt. Beaverton is further responsible for reimbursing
Tigard in the amount of approximately $100,000, along with
interest, as described in section 6 of this Agreement in
exchange for Tigard advancing said amount to Nesbitt to serve
as the remainder of Beaverton's share. In addition, Beaverton
will be responsible for the following:
a) Performing all plan reviews and inspections of the sewer
line as it would any private development that eventually
becomes the property of Beaverton. Beaverton will accept
the line upon completion according to approved plans
2 - COOPERATIVE INTERGOVERNMENTAL AGREEMENT
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following standard acceptance standards and procedures
published as City of Beaverton public Works Department
Engineering Design Manual and Standard Drawings, adopted
July 24, 1989
b) Exerting its powers of condemnation to acquire any
easement required to further the replacement of the sewer
line. All costs related to condemnation including
Beaverton's reasonable attorney fees, and any attorney
or other fees and costs related to condemnation shall be
included as project costs. Beaverton will engage in
condemnation only if Nesbitt makes a reasonable offer to
acquire the easement and Nesbitt and the property owner
fail to agree on a reasonable price after good faith
negotiations. If this occurs, Nesbitt will contact
Beaverton's City Attorney who will recommend to
Beaverton's City Council that powers of condemnation be
used. Beaverton will follow its usual condemnation
process involving actions for immediate possession.
4) Tigard Responsibilities. Tigard agrees to Issue building
permits to Nesbitt but withhold permanent occupancy permits
for the hotel expansion until the SPRR Trunk sewer line is
complete and accepted by Beaverton. Tigard agrees to waive
the City's share of sewer systems development charges (SDC)
totaling approximately $18,000. Nesbitt is responsible for
paying the Unified Sewage Agency (USA) share of the sewer
charge to the City of Tigard. Tigard will forward the payment
to USA. Tigard will pay $10,000 as additional contribution
to the project. In addition, Tigard agrees to advance
Beaverton approximately $140,000 towards the construction of
the sewer line consistent with the terms of sections 2 and 6
of this agreement. Payment shall be made directly to Nesbitt
on behalf of Tigard and Beaverton in a lump sum upon receipt
of a request for disbursement after the line is constructed
.by Nesbitt, accepted by Beaverton and after Tigard reviews and
accepts receipts and documentation substantiating the actual
cost of the project. Nesbitt shall not be eligible for
interest for any funds it advances to the project.
5) Cost Share. The estimated total cost of the project to
replace the SPRR Trunk sewer line is $178,000 allocated as
follows:
$ Contribution
Beaverton $140,000 78.65
Tigard $ 10,000 5-62
Nesbitt $ 28,000 15.73
Any cost savings or overruns will be allocated to the parties
on the same basis as in the original cost share above.
3 - COOPERATIVE INTERGo,,7ERNME:NTAI, AGREEMENT
6) Payback Agreement. In addition to repaying Tigard in the
amount of $40,000 as discussed in Section 3, Beaverton agrees
to repay the approximately $100,000 advanced by Tigard over
a two-year period. Payment will be made within 24 months of
the date funds are advanced by Tigard. Beaverton will pay
back the principal and interest in no more than four equal
payments due either on July 1, 1992, January 1, 1993, July 1,
1993 and January 1, 1994 or 6, 12, IS and 24 months from the
date funds are advanced. Beaverton shall select either
payment option. If Beaverton repays Tigard the entire
$100,000 within thirty (30) days of Tigard advancing funds to
Nesbitt and submitting a billing to Beaverton, no interest
payment shall be due. If Beaverton pays a lesser amount
within thirty (30) days of billing, interest shall accrue on
the unpaid balance from the date funds are advanced.
These payback provisions are subject to action of the
Beaverton City Council to appropriate the necessary funds in
succeleding fiscal
Prior to the expiration of the agreement, Beaverton may pay
the total amount dupe Tigard at any time with no prepayment
penalty. Interest shall be at the average rate earned by the
Local Government Investment Pool for each six month period.
Interest will accrue as of the date Tigard advances funds.
7) Indemnity. Each party agrees to indemnify and protect the
other parties from claims and causes of action arising from
their negligence and their performance of their respective
obligations under the terms of this agreement with the
exception that Nesbitt shall be fully responsible Lor any
delay in occupancy of the hotel expansion area. Except for
maintenance responsibility, which will terminate at the end
of one year as referenced in the Engineering and Design
Manual. Nesbitt's liability shall terminate with Beaverton's
acceptance.
8) Amendment Provisions. The terms of this agreement may be
amended by mutual agreement of the parties. Any amendments
shall be in writing and shall refer specifically to this
agreement, and shall be executed by the parties.
9) Lawsuits. Any lawsuit or action to enforce this agreement
must be brought in the Oregon state courts for Washington
County. Oregon law shall govern in any such lawsuit or
action.
4 - COOPERATIVE INTERGOVERNMENTAL AGREEMENT
10) Written Notice and Addresses. All written notices required
under this agreement will be sent as follows:
BEAVERTON: Linda Davis, Community Development Director
City of Beaverton
4755 S.W. Griffith Dr.
P.O. Box 4755
Beaverton, OR 97076
TIGARD: Edward Murphy, Community Development Director
City of Tigard
13125 S.W. Hall Blvd.
P.O. Box 23397
Tigard, OR 97223
NESBITT: J. Stuart Wilson, Project Manager
Nesbitt Partners Portland Venture Ltd.
c/o Windsor Capital Group
7222 Commerce Center Dr.
Suite 245
Colorado Springs,CO 80919
IN WITNESS WHEREOF, the parties have set their hands and affixed
their seals as of the date and year herein above written.
CITY OF BEAVERTON, by and through.
its City Officials
By:
Mayor
CITY OF by and through
its Ci Of icials
7
By
Mayor
NESBITT PARTNERS PORTLAND VENTURE LTD.
By:
Partner
5 - COOPERATIVE INTERGOVERNMENTAL AGREEMENT