Tri-Met - Construction of Betterments TriMet Contract No.GH090182BC
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INTERGOVERNMENTAL AGREEMENT
FOR CONSTRUCTION OF BETTERMENTS
BY WASHINGTON COUNTY COMMUTER RAIL PROJECT
TIGARD STATION
This Intergovernmental Agreement ("Agreement") is made and entered into by
and between the Tri-County Metropolitan Transportation District of Oregon, a mass
transit district organized under the laws of the state of Oregon ("TriMet") and the City of
Tigard, a political subdivision of the State of Oregon ("City") (jointly referred to herein
as "the Parties"), as of the effective date shown below.
RECITALS
A. On or about October 1, 2002, the Cities of Tigard, Tigard, Beaverton and
Wilsonville (collectively, `-`-the Cities"), and Washington County (the "County") executed
an Urban Services Intergovernmental Agreement for the purpose of allowing better
coordination and design consistency between the Cities and the County for the station
areas for the Washington County—Wilsonville to Beaverton Commuter Rail Project (the
"Project"). The Urban Services Intergovernmental Agreement was amended in 2006, and
thereafter, the County assigned all of its rights, obligations and interests thereunder to
TriMet.
B. The Urban Services. Agreement, as amended ("Urban Services IGA"),
provides that station area Project'improvements shall be consistent with a common set of
design guidelines for station areas established by the Project; that Project improvements
may recognize design variations included in local design guidelines.or standards; and that
any incremental cost attributable to physical improvements or modifications greater than
the cost set forth in the design guidelines and the Development- Process set forth in the
Urban Services IGA, will be the financial responsibility of the permitting City.
C. The Urban Services IGA provides that the Commuter Rail Project Manager
shall enter into a Memorandum of Understanding with each City, outlining the details for
costs, construction, roles and responsibilities for station area and any off-site
improvements.
D. TriMet and City have reached an agreement in principle regarding the design,
construction and cost estimates for the Betterments identified below, and therefore desire
to enter into this Agreement to memorialize their agreements regarding Betterments
constructed at the City's request in connection with the Project, as defined below.
E. The Parties have the authority to enter into Intergovernmental Agreements
pursuant to ORS Chapter 190.
F. TriMet is willing to construct the Betterments for the City in accordance with
the terms and conditions set forth below.
AGREEMENT
1. Overview of Roles:
a. TriMet Role: As more fully described in Section 2 below, TriMet shall
have full performance and cost responsibility for design, permitting,
construction, operation and maintenance of the commuter rail facilities, as
identified in Exhibit 1, attached hereto and by this reference incorporated
herein. This includes the commuter rail track, and commuter rail
passenger platform located within the jurisdiction of the City.
b. City Role, The City shall share in performance and cost responsibilities
for the station Betterments as described in Exhibit 1.
2. TriMet Obligations:
a. Except as specifically set forth herein, TriMet shall be responsible for
performing the design, permitting, construction, operation and
maintenance for the commuter rail trackway and passenger platform
located within the jurisdiction of City, and for paying all associated costs,
as identified in Exhibit 1.
b. TriMet shall design and construct the Park and Ride Lot and commuter
rail station, as identified in Exhibits 1 and 2. TriMet will be the applicant
for permits required for the Park and Ride Lot and station platform.
c. Except as specifically set forth herein, TriMet shall design, permit and
construct, at the City's expense, any Betterments identified and requested
by the City. As used in this Agreement, "Betterments" shall mean those
improvements that enhance public infrastructure in the vicinity of the
commuter rail alignment, unless: (1) the work is required to safeguard or
protect the Project; (2) the work is required to meet current City Code; or
(3) such work replaces existing infrastructure and the specified
replacement work is either less costly or more cost effective than an exact
in-kind replacement. In any of these three (3) cases, the work shall not be
deemed a"Betterment,". and the Project shall pay for such work. As of the
date of this Agreement, 'the Betterments identified by the City consist of
the following:
1. an alternative platform and station shelter, which are to be
designed by the City and incorporated into TriMet's
contract drawing set, as identified in Exhibit 2;
2. increased pavement reconstruction limits on Main Street,
including areas where City recently installed new water
mains, as identified in Exhibit 2; and
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3. two (2) six-foot- (67), long black, metal benches along the
mulit-use path,-.as,identifiedin Exhibit 2.
d. City shall allow TriMet to comment on the design work for any
Betterments to be designed by the City, and shall make commercially
reasonable efforts to incorporate TriMet's requests into the design of such
Betterments. TriMet shall allow the City or its contractors to comment on
the design work for all other Betterments and shall make commercially
reasonable efforts to incorporate the City's requests into the design of such
other Betterments. TriMet shall also allow the City or its contractors to
observe the construction work, and shall make commercially reasonable
efforts to incorporate the City's requests into the construction of the
Betterments.
e. By the Parties signing this Agreement, TriMet agrees to continue to
completion the construction of the Betterments. If at some point prior to
completion of the Betterments, the City chooses not to proceed, TriMet
will either, at.TriMet's sole discretion, invoice the City for any TriMet
design work for the Betterments and. construct the improvements
consistent with the Washington County Commuter Rail Project 75%
complete design documents, as revised to exclude the Betterments, or not
invoice the City for any TriMet design work for the Betterments and
construct or use the improvements as TriMet sees fit.
f. TriMet will pay its designer for civil, structural and electrical engineering
support to the City's design consultant and for any Betterments designed
by TriMet's designer, and shall pay its construction contractor for work
performed on the Betterments. TriMet shall submit invoices to the City
for the costs of its designer and construction contractor, and TriMet
construction administration costs related to the.Betterments, as such costs
are incurred. Such.invoices shall not be issued before Notice to Proceed is
given to the designer or construction contractor assigned to the work
and/or the work is underway or completed. Provided, however, that upon
approval of this Agreement, TriMet shall prepare, and submit to the City
for payment, an invoice for the Preliminary Engineering for the
Betterments as well as Final Design costs to date.
g. Any additional Betterments and provisions for cost reimbursement must
be approved by both Parties in writing.
3. CitObligations:
a. For Betterments to be designed by City and constructed by TriMet, City
shall pay its designer to provide to TriMet 100% final construction
documents. City shall transmit documents to TriMet in AutoCAD
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formatted drawing files in accordance with.TriMet design standards. City
shall pay all of its designer's costs associated with the Betterments.
b. Any City comments on the design or construction of the Betterments shall
be provided.to TriMet within one (1) week for design matters and forty-
eight (48) hours for construction matters.
c. Any City comments on construction Change Orders of the Betterments
shall be provided to TriMet within one (1) week.
d. The City shall pay'the final actual cost incurred by TriMet in designing,
permitting and' constructing the Betterments, including any cost overruns
and any cost increases resulting from Change Orders initiated as a result of
changes in scope of work directed by the City. TriMet's current cost
estimate for the .City's share of the Betterments is approximately Sixty-
Eight Thousand,Four Hundred and Eleven Dollars ($68,411.00) including
design, construction, and a contingency allowance as detailed in Exhibit 3.
Both Parties agree that final construction costs may fluctuate by Ten
Percent (10%) and still be considered consistent with this agreement. The
City shall reimburse TriMet within thirty (30) days of receipt of each
invoice from TriMet.
e. The City and TriMet shall be co-applicants on all required permits for the
Betterments.
f. Any additional Betterments and. provisions for cost reimbursement must
be approved, in writing.
4. 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 30.300, 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
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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: City:
Steve Witter Craig Prosser
TriMet City Manager
710 NE Holladay Street City of Tigard
Portland OR 97232 13125 SW Hall Blvd.
Telephone (503) 962-2169 Tigard OR 97223
Facsimile (503) 962-2284 Telephone (503) 639-4171
witters@tri-met.org Facsimile(503) 684-7297
craigd@tigard-or.gov
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 and to carry out any other act
referred to herein.
e. Entire Agreement; Modification; Waiver. This Agreement and attached
exhibits 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
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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 is
expressly described as an intended beneficiary under this Agreement.
h. Effective and Termination Dates. This Agreement shall be effective on
the date the last party executes the Agreement, and shall remain in effect
until the completion of all obligations created by this Agreement.
i. Early Termination of Agreement.
i. City and TriMet, by mutual written agreement, may terminate this
Agreement at any time.
ii. 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,
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however, the party seeking the ten-nination shall give the other party written
notice of the breach and of the party'a. intent to terminate. If the breaching
Party has not entirely cured the breach within thirty (30) days of the notice,
then the partygiving 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.
i. This Agreement shall be construed according to the laws of
the State of Oregon.
ii. 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.
iii. 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.
1. 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 be borne by the inspecting party.
n. Severability/Survivability. If any provision of this Agreement is found to
be illegal or unenforceable, this Agreement'nevertheless shall remain"in
full force and effect and the provision shall be stricken. All provisions
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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.
TRI-COUNTY METROPOLITAN CITY OF TIGARD
TRANSPORTATION DISTRICT OF
OREGON
_ By:
Neil McFarlane, E cuti .e'Director
Date: 4-77 P Date: �/' 3Zo 8'
APPROVED AS TO ORM: APPROVED AS TO FORM: / [
By: �r By: � to h/®b
Britney Colton Tim Ramis
Deputy General Counsel City Attorney
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EXHIBIT 1
TIGARD STATION -- PROJECT ELEMENTS
Project Elements: The following paragraphs describe the scope of the project elements for the
Tigard Station. Table 1 describes the task responsibilities for each of the project elements and
Table 2 describes the funding responsibilities for each of the project elements.
Commuter Rail Facilities
A. Commuter Rail Track, Park and Ride Facility and Platform including the
Tigard Shelter betterments. The project includes rail trackway, an approximately
103 space park and ride facility, and a passenger platform that includes the City of
Tigard shelter betterment. This project shall be completed by the scheduled opening
of the commuter rail line.
Table 1: Task Responsibilities
Tasks Design Permits Construction Operations&
Maintenance
Commuter Rail Facilities
Civil, Structural,Electrical,and Architectural TriMet TriMet TriMet TriMet
Design of the Commuter Rail Station Shelter
Multiuse Path TriMet TriMet TriMet TriMet
Multiuse Path Betterments TriMet TriMet TriMet Tigard
Pavement Reconstruction TriMet TriMet TriMet TriMet
Water line casing extensions TriMet TriMet TriMet TriMet
Table 2: Cost Responsibilities
Tasks Design Permits Construction Operations&
Maintenance
Commuter Rail Facilities
Civil, Structural,Electrical,and Tigard TriMet TriMet TriMet
Architectural Design of the Commuter
Rail Station Shelter
Multiuse Path Tigard 30% TriMet TriMet Tigard
TriMet 100%
Multiuse Path Betterments Tigard TriMet Tigard Tigard
Pavement Reconstruction TriMet I TriMet I Tigard Tigard
Waterline casing extensions TriMet/Tigard I TriMet I Tigard Tigard
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EXHIBIT 3
Table 3: Cost Estimates for City's Share of Betterments
Description Cost
Tigard Station Shelter B_ettennents CO#69 $41;751
Main Street Paving CO#98 $ 22,000
Multi-Use Path Benches $4,660
1
EXHIBIT 3
Table 3: Cost Estimates for City's Share of Betterments
Description Cost
Tigard Station Shelter Betterments CO#69 $41,751
Main Street Paving CO#98 $22,000
Multi-Use Path Benches $4,660
1
TRI @M E'T
October 27, 2008
Kim MacMillan
City of Tigard
13125 SW Hall Blvd. / n
Tigard OR 97223
Re: Tigard Betterments Agreement
Dear Kim:
Enclosed please find 3 signed agreements for the Tigard Betterments Agreement. Please
obtain the appropriate signatures on your end and return one fully executed copy to me for
our records.
Th k you,
"1
Britney . Colton SS
Deputy General Counsel u)
Enclosures
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Tri-County Metropolitan Transportation District of Oregon • 710 NE Holladay Street,Portland,Oregon 97232 • 503-238-RIDE • TTY 503-238-5811 • trimet.org