TriMet - Westside Commuter Rail Maintenance Agreement
TriMet Contract No. GH09027OBC
WESTSIDE COMMUTER RAID PROJECT
TRIMET AND CITY OF TIGARD
MAINTENANCE AGREEMENT
THIS MAINTENANCE AGREEMENT ("Agreement") is entered into by and between
the Tri-County Metropolitan Transportation District of Oregon, a public transit district
(hereinafter referred to as "TriMet") and the City of Tigard, a municipal corporation
(hereinafter referred to as "the City"), collectively referred to herein as the "Parties."
RECITALS
A. TriMet and the City have entered into Intergovernmental Agreements for
Development of Fanno Creek and Summer Creek Wetlands Mitigation Site, an
Amendment thereto, and for Traffic Signal Improvement Cost Share, both of
which relate to TriMet's construction and operation of the Washington County -
Wilsonville to Beaverton Commuter Rail Project ("Project") and its
improvements within the City of Tigard.
B. In connection with the Project, TriMet has constructed the transit station and park
and ride lot, a multi-use path, and betterments for the City at the City's request,
which include an alternative design platform and shelter, increased pavement
reconstruction limits, and two (2) benches along the multi-use path (collectively,
the "Tigard Station"). TriMet expects to open the Project and begin use of the
Tigard Station in the fall of 2008.
C. The Parties are in the process of entering into an intergovernmental agreement for
the City's reimbursement to TriMet for the betterments.
D. The Parties recognize that some areas of the Tigard Station should be the
exclusive maintenance responsibility of one Party, while other areas should be the
collective responsibility of the Parties. An identification of those respective
responsibilities is attached as Exhibit 1 and incorporated herein by this reference.
E. The City and TriMet have the authority to enter into intergovernmental
agreements under ORS Chapter 190.
F. TriMet has the authority to contract with City for maintenance of any mass transit
system, and maintain all improvements necessary or desirable for the system
under ORS Chapter 267.
NOW, THEREFORE, in consideration of the mutual covenants and promises
contained herein, the Parties agree as follows:
AGREEMENT
ions:
City Obligations:
City shall be solely responsible for the maintenance of the following, as identified
in greater detail in the attached Exhibit 1:
• The multi-use path (identified as a sidewalk on Exhibit 1):
• The two (2) benches installed by TriMet and located on the multi-use
path;
• The removable bollard located at the North end of the multi-use path;
• All landscaping and irrigation along the multi-use path, except for the
water quality swale.
2. TriMet Obli atgL ions:
TriMet shall be solely responsible for the maintenance of the following, as
identified in greater detail in the attached Exhibit 1:
• The park and ride lot, including landscape and irrigation;
• The station platform, including the shelters;
• All lighting at the Tigard Station;
• The water quality swale along the multi-use path
• Fence along the multi-use path
3. General Provisions:
a. Relationship of the Parties. Each of the Parties hereto shall be deemed an
independent contractor for purposes of this Agreement. No representative,
agent, employee or contractor of one party shall be deemed to be an
employee, agent or contractor of the other party for any purpose, except to
the extent specifically provided herein. Nothing herein is intended, nor
shall it be construed, to create between the Parties any relationship of
principal and agent, partnership, joint venture or any similar relationship,
and each party hereby specifically disclaims any such relationship.
b. Indemnification. Within the limits of the Oregon Constitution and the
Oregon Tort Claims Act, codified at ORS 30.260 through 30300, each of
the Parties shall hold harmless, indemnify and defend the other and its
officers, employees and agents from and against all claims, demands,
penalties, and causes of action of any kind or character relating to or
arising from this Agreement (including the cost of defense thereof,
including attorney fees) in favor of any person on account of personal
injury, death, damage to property, or violation of law, which arises out of,
or results from, the negligent acts or omissions of the indemnitor, its
officers, employees, or agents.
c. Compliance with Laws. The Parties 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 279C.505, 279C.515, 279C.520, 279C.530, which hereby are
incorporated by reference. Without limiting the generality of the
foregoing, the Parties expressly agree to, comply with: (i) Title VI of Civil
Rights Act of 1964; (ii) Section V 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.
d. Project Manager. All routine correspondence and communication
regarding this Agreement shall be between the project managers:
TriMet:
Judy Munro
TriMet
710 NE Holladay Street
Portland OR 97232
Telephone (503) 962-2461
munroj@trimet.org
City
Phil Nachbar
City of Tigard
13125 SW Hall Blvd.
Tigard OR 97223
Telephone (503) 639-4171
phil@Tigard-or.us
The Project Managers are authorized to approve work and billings, to give
notices, to execute amendments to this Agreement that do not increase the
compensation, to terminate this Agreement pursuant to Paragraph (i) of
this Agreement, and to carry out any other act referred to herein.
e. Entire Agreement; Modification; Waiver:. This Agreement and attached
exhibit constitute the entire Agreement between the Parties on the subject
matter hereof, and supersede all prior or contemporaneous written or oral
understandings, representations or communications of every kind. There
are no understandings, agreements, or representations, oral or written, not
specified herein regarding this Agreement. No course of dealing between
the Parties and no usage of trade will be relevant to supplement any term
used in 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. 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 a Party to enforce any provision of this
Agreement shall not constitute a waiver by a party of that or any other
provision.
f. Interruption of Services.
1. Force Majeure. Neither party shall be liable to the other
party for any failure of performance under this Agreement due to
causes beyond its control, such as: acts of God, fire, flood or other
catastrophes; any law, order, regulation, direction, or action of any
other government entity claiming jurisdiction over such party
(including delay or inaction in issuing necessary construction
permits, use permits, or similar authorizations), or of any
instrumentality thereof of any civil or military authority; national
emergencies; unavailability of materials or right-of-way;
insurrections; riots; wars; or strikes; lock=outs, work stoppages or
other labor difficulties (collectively, "force majeure events");
provided that in the event of force majeure, the party whose
performance is prevented or impaired shall provide notice to the
other party within ten (10) days of the occurrence of such event
and shall thereafter use commercially reasonable efforts to
complete or correct the affected performance without undue delay.
2. No Liability for Special, Consequential, Exemplary or
Punitive Damages. In no event shall either party to this
Agreement be liable to the other for special, consequential,
exemplary or punitive damages as a result of the performance or
non-performance of any obligations under, or acts or omissions
related to, this Agreement.
g. No Third-Party Beneficiary. Except as set forth herein, this Agreement is
between the Parties and creates no third-party beneficiaries. Nothing in
this. Agreement gives or shall be construed to give or provide any benefit,
direct, indirect or otherwise to any third parties unless such third party i&
expressly described as an intended beneficiary under this Agreement.
h. Effective and Termination Dates. The term of this Agreement shall be for
fifty (50) years, commencing on the date of execution of this Agreement,
unless the Parties both agree in writing to extend it. At the request of
either Party, the Parties shall re-negotiate the terms of this Agreement
every three (3) years, as determined by the commencement date of this
Agreement. Failure to reach a mutual agreement during re-negotiation on
any modifications to the terms tof this Agreement does not constitute a
Breach of this Agreement.
i. Early Termination of Agreement.
1. City and TriMet, by mutual written agreement, may
terminate this Agreement at any time.
2. Either City or TriMet may terminate this Agreement in the
event of a breach of the. Agreement by the other Party.
Prior to such termination, however, the party seeking the
termination shall 'give the other party written notice of the
breach and of the party's intent to terminate. If the
breaching Party has not entirely cured the breach within
thirty (30) days of the notice, then the party giving the
notice may terminate the Agreement at any time thereafter
by giving a written notice of termination.
j. Remedies. The remedies provided under this Agreement shall not be
exclusive. The Parties also shall be entitled to any other equitable and
legal remedies that are available.
k. Oregon Law, Dispute Resolution and Forum.
1. This Agreement shall be construed according to the laws of
the State of Oregon.
2. TriMet and City shall negotiate in good faith to resolve any
dispute arising out of this Agreement. If the Parties are
unable to resolve any dispute within fourteen (14) calendar
days, the Parties are free to pursue any legal remedies that
may be available.
i. Any litigation between City and TriMet arising under this
Agreement or out of work performed under this Agreement
shall occur, if in the. state courts, in the Multnomah County
Circuit Court, and if in the federal courts, in the United
States District Court for the District of Oregon located in
Portland, Oregon.
Subcontracting. Each party acknowledges that. the other party may intend
to contract or subcontract its work under this Agreement, in whole or in
part. Each party agrees to the other party's contracting or subcontracting
and no specific approval of any of the other party's contractors or
subcontractors is required. Each party shall require any contractor or
subcontractor to agree, as to the portion contracted or subcontracted, to
fulfill all applicable obligations of that party as specified in this
Agreement.
in. Inspection of Records. Each of the Parties shall have the right to inspect,
at any reasonable time; such records in the possession, custody or, control
of the other party as it deems necessary for review of the other party's
obligations and its rights under this Agreement. The cost of such
inspection shall bebome by the inspecting party.
n. Severability/Survivability. If any provision or provisions of this
Agreement of this Agreement is found to be in any way invalid, illegal, or
unenforceable, all of the provisions of this Agreement shall remain in and
effect and the provision or provisions shall be stricken. All provisions
concerning indemnity survive the termination of this Agreement for any
cause.
o. Successors and .Assigns: The interests, rights, and benefits conferred by
this Agreement, and the obligations assumed there under, shall inure to the
benefit of and bind the successors and assigns of the Parties hereto.
p. Interpretation of Agreement. This Agreement must not be construed for or
against either Party by reason of the authorship or alleged authorship of
any provision. The Section headings contained in this Agreement are for
ease of reference only and must not be used in constructing or interpreting
this Agreement.
IN WITNESS WHEREOF, the Parties have executed this Agreement effective
the date first noted herein.
TRIMET
By:
Date:
CITY OF TI
By:
Date:
ApprpLe4 _ as to Form
By:
Britney VCt;n
Deputy eral Counsel
TriMet W
Approved as to Form
By: ...ova 94L M4:44 1,01lict
City Attorney
J~
EXHIBIT 1
WASHINGTON COUNTY COMMUTER RAIL
MAINTENANCE RESPONSIBILITIES
CITY OF TIGARD AND TRIMET
Ti let City
1. Tigard Station platform X
A. Platform X
B. Station X
C. Platform Railings and Ramps X
D. Ticket Vending Equipment and Telephone X
E. Trash Receptacles,. Benches, and other amenities x
F. Lighting X
H. Transit-Related Signs, and Graphics x
L Artwork X
J. Transit tracker x
II. Tigard Park and Ride
A. Parking stalls striping and drive aisles x
B. Curbs and Gutter X
C. Stormwater inlets x
D. Bike racks x
E. Landscape and Irrigation X
F. Sidewalks and Pedestrian crossing x
G. Lighting X
H. Transit-Related Signals, Signs and Graphics x
1. Storm inlets; outfalls, and pipes for Park and Ride X
J. Water Line and Hydrant x
III. Main Street Trackway
A. Track X
B. Track panels x
C. Track Drains and Clean outs x
D. RR Signage and Tactile Warning Strips X
E. RR Signal Equipment (Gates, Lights, and Houses x
THM. et City
IV. Multi Use path
A. Sidewalk (identified as Multi-path in Agreement) X
B. Landscape Water Quality Swale X
C. Landscape and Irrigation along path x
D. Fence X
E. Lighting X
F. Benches (2) X
G. Boulders X
H. Signage x
1. Storm inlet, outlets and cleanouts x
J. Storm Culverts X
L. Removable Bollard x
CITY OF TIGARD
CONTRACT SUMMARY FORM
/TMLS MUST ACCOMPANY EACH CONTRACT BEFORE AUTHORIZATION SIGNATURE CAN BE ACQUIRED)
Title of Contract: IGA - Westside Commuter Rail Project Trimet
and the City of Tigard Maintenance Agreement Contract #:
Contractor: Tri-Count Metropolitan Transporation District Total: $ -0 -
Brief Overview: Maintenance Agreement for the City to provide maintenance service for
improvements installed as part of the Commuter rail station
Changes Made To IGA created by Tri-Met and reviewed by the City's attorney.
Boilerplate
Contract
Type of Contract: ? Purchase A reement ? Personal Service ? Construction ® Other
Start Date: November 2008 End Date: None LCRB Award Date: N/A
Contract Manager: Kim McMillian Extension: 2642 Department: CD
Quotes/Bids/Proposals: COMPANY AMOUNT / SCORE
Department Comments: Public Work is aware is aware of this IGA and will need to budget
between $5,000 to $7,000 fw=FtYe maintenance cost.
Department Signature Date: 10 • 2-4•?
Purchasing Comments:
Purchasing Signature: Date:
Administration: Date: /2 a
Certificate of Insurance Re ved? ? Yes ? No ? Self-Insured Form Received
Business Tax Current? ? Yes ? No Contractor License Current? ? Yes ? No
Federal TIN/1099 #: Bonds Required: ? Yes ? No
Fund Division Account Total
N/A
T R I @ MET
October 28, 2008
Kim McMillan
City of Tigard
13125 SW Hall Blvd.
Tigard, OR 97223
Re: Maintenance Agreement
Dear Kim:
CPO
Enclosed please find 3 signed copies of the revised Maintenance Agreement. Please sign
and return to me one fully executed original.
Thank u,
Britney A. Co ton
Deputy General Counsel
Enclosures
0/?"
r I ld?
Tri-County Metropolitan Transportation District of Oregon • 710 NE Holladay Street, Portland, Oregon 97232 • 503-238-RIDE u TTY 503-238-5811 • trimet.org