ODOT & WalMart - Haines Street Signal Misc. Contracts and Agreements
No. 28599
COOPERATIVE IMPROVEMENT AGREEMENT
OR99W and SW 72nd/OR 217/1-5 and SW Haines
68th / 1-5 S13 Haines Street Signal
City of Tigard, WalMart Store #5935-00
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;"
the City of Tigard, acting by and through its elected officials, hereinafter referred to as
"City," and WalMart Real Estate Business Trust, a Delaware Statutory Trust, acting by
and through its designated officials, hereinafter referred to as "Developer," all herein
referred to individually or collectively as "Party" or"Parties."
RECITALS
1. Pacific West Highway (OR 99W), and Beaverton-Tigard Highway (OR 217) are part
of the state highway system under the jurisdiction and control of the Oregon
Transportation Commission (OTC). Dartmouth Street, 68th Avenue, 72nd Avenue,
Beveland Street, Gonzaga Street, Hampton Street, Hunziker Street, Varns Street,
Pfaffle Street, and Hermoso Way are a part of the city street system under the
jurisdiction and control of City.
2. By the authority granted in Oregon Revised Statutes (ORS) 190.110, 366.572 and
366.576, State may enter into cooperative agreements with counties, cities and units
of local governments for the performance of work on certain types of improvement
projects with the allocation of costs on terms and conditions mutually agreeable to the
contracting parties.
3. By the authority granted in ORS 374.305 and 374.310, State may regulate
construction of any approach onto the state highway and require mitigation for
approaches that the State determines to be in the best interest of the traveling
public.
4. Oregon Administrative Rule 660-12-0060 requires local jurisdictions to put in place
measures to assure that allowed land uses are consistent with the function, capacity
and performance standards of affected transportation facilities when they amend
comprehensive plans or land use regulations .
5. State, by ORS 366.220, is vested with complete jurisdiction and control over the
roadways of cities taken for state highway purposes. By the authority granted by
ORS 373.020, the jurisdiction extends from curb to curb, or, if there is no regular
established curb, then control extends over such portion of the right of way as may
be utilized by State for highway purposes. Responsibility for and jurisdiction over all
other portions of a city street remains with the City.
6. By the authority granted in ORS 810.080 State has the authority to establish marked
pedestrian crosswalks on its highway facilities.
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7. By the authority granted in ORS 810.210, State is authorized to determine the
character or type of traffic control devices to be used, and to place or erect them
upon state highways at places where State deems necessary for the safe and
expeditious control of traffic. No traffic control devices shall be erected, maintained,
or operated upon any state highway by any authority other than State, except with its
written approval. Traffic signal work on this Project will conform to the current State
standards and specifications.
8. 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.
9. This Agreement identifies funding and maintenance obligations for State, City and
Developer as the Project undergoes development and construction.
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, State, City, and Developer agree that Developer shall perform
the following upon approval by State of required permits, including, "Permit to
Occupy or Perform Operations upon a State Highway":
a. Removing one of the two OR99W southbound (SB) to SW 72 Avenue SB left-
turn lanes;
b. Adding a third SB lane on OR99W just north SW 72nd Avenue and ending it with
a drop lane onto OR217 northbound (NB) (This lane onto OR217 currently
develops between the 78th and OR217 traffic signal);
c. Allowing NB OR99W passenger vehicles to do a u-turn at the SW 72nd Avenue
intersection;
d. Placing a raised traffic separator for the NB OR99W left turn lane that turns into
Fred Meyer;
e. Placing a raised median for a small distance on OR99W's north leg at the SW
74th Avenue intersection;
f. Placing a raised median on OR99W from SW 74th Avenue to SW Pfaffle Street
where the raised median will control movements on the SW Pfaffle Street
approach;
g. Placing a raised traffic separator for the SB OR99W left turn lane that turns into
SW Dartmouth Street. U-turn movement will not be allowed;
h. Placing a raised separator for the NB OR99W left turn lane that turns into SW
78th Avenue and allowing u-turns for passenger vehicles;
i. Placing a raised median on OR99W from the left turn lane that goes to SW 78th
to the crosswalk of the OR217 NB Ramp Terminal;
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j. Lengthening the OR99W NB right turn lane that goes onto SW Dartmouth Street;
k. Converting the NB SW 72nd Avenue right-turn lane onto OR217 at the SW
Varnes Street intersection into a shared through / right-turn lane;
I. Adding a second NB lane on SW 72nd Avenue from SW Varnes Street to SW
Beveland Street;
m. Removing the traffic signal at the SW 72nd Avenue / SW Hampton Street
intersection and making SW Hampton Street a right-in / right-out only approach.
The signal will become property of ODOT and will be delivered to an ODOT
maintenance yard (as determined by ODOT's Maintenance and Operations
manager) as a Project expense;
n. Widening the OR217 NB Exit Ramp at SW 72nd Avenue;
o. Installing a signal on Dartmouth Street at Walmart site access (City owned traffic
signal);
p. Installing a signal on Dartmouth Street at 72nd Avenue (City owned traffic signal);
q. Installing a signal at the 68th / 1-5 SB Haines Street ramps (ODOT owned traffic
signal);
r. Widening Dartmouth between Walmart access and the Costco signal; and
s. Making curb improvements on the SE corner of the Dartmouth Street / OR99W
intersection that includes a patterned concrete buffer and high rolled curbs to
accommodate freight traffic on the right-turn which City will maintain.
Collectively, these improvements shall hereinafter be referred to as "Project." The
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. The Project will be financed entirely by Developer at an estimated cost of
$5,100,000 in Developer funds. The estimate for the total Project cost is subject to
change. Developer shall be responsible for all Project costs including those beyond
the estimate above. No public funds shall be used for this Project.
3. This Agreement shall become effective on the date all required signatures are
obtained and shall remain in effect for the purpose of ongoing maintenance and
power responsibilities for the useful life of the facilities constructed as part of the
Project, except that the Developer Obligations (except indemnifications and any
warranties or other representations) shall terminate upon the completion of the
Project. The useful life is defined as fifteen (15) calendar years. The Project shall be
completed within five (5) calendar years following the date of final execution of this
Agreement by all Parties.
CITY OBLIGATIONS
1. City shall, upon successful completion and acceptance of Project, accept ownership
and control of those improvements connected with the operation of City streets.
2. City shall maintain the asphaltic concrete pavement surrounding the vehicle detector
loops installed in any leg of a city street at a State highway intersection in such a
manner as to provide adequate protection for said detector loops. Failure to do so
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may result in State requiring City to repair or replace damaged loops at City's
expense. City shall also adequately maintain the pavement markings and signing
installed in accordance with current State standards along its streets.
3. City shall, at its own expense, be responsible for maintaining improvements
constructed on City streets as part of this Project.
4. City shall be responsible for 100 percent of power costs associated with the
luminaries installed on City streets as part of this Project. City shall have power
company send bills directly to City.
5. City shall be responsible for 100 percent of costs associated with maintaining any
landscaped medians built on OR99W as a part of this Project, including landscaping
maintenance and water irrigation costs from back of curb to back of curb.
6. City shall be responsible for 100 percent of maintenance and operation costs
associated with the new signals installed on Dartmouth Street at the access to the
Walmart and at 72nd Avenue.
7. Consistent with the 2002 Policy Statement for Cooperative Traffic Control Projects,
Agreement 19719, between State and the agencies belonging to the Association of
Oregon Counties (AOC) or the League of Oregon Cities (LOC), State and City shall
each be responsible for fifty percent (50%) percent of the cost for maintenance,
operation and electricity for the signal equipment, excluding the detector loops, on
the 68th / 1-5 SB Haines Street ramps as listed in Terms of Agreement Paragraph 1
subsection q. State shall perform the maintenance and be responsible for payment
for signal power to the power company. The power company shall send power bills
directly to State. State shall annually bill Agency for its fifty percent (50%) of the
combined maintenance, operations and electricity for the Project. This cost split only
applies to the 68th / 1-5 SB Haines Street ramps signal and does not apply to any
other signals built as a part of this Project.
8. City grants State and Developer the right to enter onto City right of way for the
purpose of construction and performance of maintenance duties as set forth in this
Agreement upon proper and timely notice.
9. City services charged to the Project or any cost sharing for maintenance or power
arrangements between City and Developer that do not include State, shall be
confirmed in a separate agreement between City and Developer and are not a part
of this Agreement.
10.If City fails to maintain facilities in accordance with the terms of this Agreement,
State, at its option, may maintain the facility and bill City, seek an injunction to
enforce the duties and obligations of this Agreement or take any other action allowed
by law.
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11.City certifies and represents that the individual(s) signing this Agreement has been
authorized to enter into and execute this Agreement on behalf of City, under the
direction or approval of its governing body, commission, board, officers, members or
representatives, and to legally bind City.
12.City's Project Manager for this Project is Kim McMillan, PE, 13125 SW Hall
Boulevard, Tigard, OR 97223, 503-718-2642, kim@tigard-or.gov, or assigned
designee upon individual's absence. City shall notify the other Parties in writing of
any contact information changes during the term of this Agreement.
DEVELOPER OBLIGATIONS
1. Developer shall upon receipt of a fully executed copy of this Agreement and upon a
subsequent letter of request from State, forward to State an advance deposit in the
amount of $90,000 for the maintenance costs associated with the State-approved
storm water system filter replacement required for the storm water drainage facilities
constructed as part of the Project. This advance deposit covers the estimated
annual maintenance costs of $6,000 per calendar year for the term of this
Agreement, which is fifteen (15) years.
2. Developer has, as of the date of execution of this Agreement, deposited $60,000
with State's District 213 office. If State anticipates that the advance deposit will be
exceeded, State will notify the Developer and send an additional request with the
estimate of costs. State will return any unused funds to the Developer after the
Project is completed.
3. This Agreement is conditioned upon Developer obtaining any required permits from
State, including, "Permit to Occupy or Perform Operations upon a State Highway"
from State's District 213 office, as well as but not limited to, land use permits, building
permits, and engineering design review approval from the State and City. Developer
agrees to comply with all provisions of said permits, and shall require its contractors,
subcontractors, or consultants performing such work to comply with said permits and
provisions.
4. Developer shall conduct the necessary field surveys, environmental studies, traffic
investigations, preliminary engineering and design work required to produce and
provide final plans, specifications and cost estimates for the highway Project; identify
and obtain all required permits; perform all construction engineering, including all
required materials testing and quality documentation; prepare all bid and contract
documents; advertise for construction bid proposals; award all contracts; pay all
contractor costs, provide technical inspection, project management services and
other necessary functions for sole administration of the construction contract entered
into for this Project.
5. Developer shall design and construct the Project in conformance with the current
edition of the ODOT Highway Design Manual and the Oregon Standard
Specifications for Construction Manual. Developer understands the Project shall be
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designed and constructed to State standards and approved by State prior to
construction of Project by Developer.
6. Developer will be required to obtain the services of a registered professional
engineer to oversee, accept, and document all construction procedures and certify
proper construction was performed pursuant to the Project plan and permit. The
registered professional engineer will be required to stamp the "As Constructed
Plans" and ensure the Project meets State's required standards. Construction
inspection for this Project will be completed by either State inspectors or a private
company with state-certified inspectors paid for by Developer.
7. All employers, including Developer, 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. Employers Liability insurance with coverage limits of not less
than $500,000 must be included. Developer shall ensure that each of its contractors
complies with these requirements.
8. Developer 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.
9. Developer shall, to the extent permitted by the Oregon Constitution and the Oregon
Tort Claims Act, indemnify, defend, save, and hold harmless City, the State of
Oregon, Oregon Transportation Commission and its members, Department of
Transportation, its officers and employees from any and all claims, suits, and
liabilities which may occur in the performance of this Project.
10.Notwithstanding the foregoing defense obligations under the paragraph above,
neither Developer nor any attorney engaged by Developer shall defend any claim in
the name of City or the State of Oregon or any agency of the State of Oregon, nor
purport to act as legal representative of City or the State of Oregon or any of its
agencies, without the prior written consent of the Oregon Attorney General. City or
the State of Oregon may, at anytime at its election assume its own defense and
settlement in the event that it determines that Developer is prohibited from defending
City or the State of Oregon, or that Developer is not adequately defending City or the
State of Oregon's interests, or that an important governmental principle is at issue or
that it is in the best interests of City or the State of Oregon to do so. City and the
State of Oregon reserve all rights to pursue any claims it may have against
Developer if City or the State of Oregon elects to assume its own defense.
11.Developer 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 279A, 279B and 279C incorporated herein
by reference and made a part hereof. Without limiting the generality of the
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foregoing, Developer expressly agrees to comply, to the extent applicable, 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.
12.Developer is required to pay, on behalf of State, any applicable fee due because of
this Project, pursuant to ORS 279C.825, to the Bureau of Labor and Industries. In
the event Developer does not pay such fee, and State is required to do so,
Developer shall reimburse State such amount, within three (3) business days, upon
its request. In addition, Developer agrees to indemnify, hold harmless and
reimburse State and its officers, employees and agents for any liability, cost,
expense, fine, fee or penalty payable to a private party or governmental entity,
including another agency of the State of Oregon resulting from or arising out of this
Project, including but not limited to expenses incurred to comply with, to obtain a
determination under, or in any other way related to the Prevailing Wage Rate Laws
set forth in ORS 279C.800 to 279C.870.
13. If Developer chooses to assign its contracting responsibilities to a contractor,
Developer shall inform the contractor of the requirements of ORS 276.071, to the
extent applicable.
14.If Developer enters into a construction contract for performance of work on the Project,
then Developer will require its contractor to provide the following, and in the event
Developer provides construction activities for the Project itself, the Developer is
required to provide the following as well:
a. Contractor shall indemnify, defend and hold harmless City, and State
against all claims, suits, actions, losses, damages, liabilities, costs and
expenses of any nature whatsoever resulting from, arising out of, or
relating to the activities of Contractor or its officers, employees, sub-
contractors, or agents under the resulting contract.
b. Contractor shall name State and City as third party beneficiaries of the
resulting contract.
c. Commercial General Liability. Contractor shall obtain, at Contractor's
expense, and keep in effect during the term of the Contract, Commerical
General Liability Insurance covering bodily injury and property damage in
a form and with coverages that are satisfactory to State and City. This
insurance shall include personal and advertising injury liability, products
and completed operations. Coverage may be written in combination with
Automobile Liability Insurance (with separate limits). Coverage shall be
written on an occurrence basis. If written in conjunction with Automobile
Liability the combined single limit per occurrence shall not be less than
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$1,000,000 for each job site or location. Each annual aggregate limit shall
not be less than $2,000,000.
d. Automobile Liability. Contractor shall obtain, at Contractor's expense, and
keep in effect during the term of the contract, Commercial Business
Automobile Liability Insurance covering all owned, non-owned, or hired
vehicles. This coverage may be written in combination with the
Commercial General Liability Insurance (with separate limits). Combined
single limit per occurrence shall not be less than $1,000,000.
e. Additional Insured. The liability insurance coverage, except Professional
Liability, Errors and Omissions, or Workers' Compensation, if included,
required for performance of the Contract shall include State and City and
its divisions, officers and employees as "Additional Insured" but only with
respect to the Contractor's activities to be performed under the resulting
contract. Coverage shall be primary and non-contributory with any other
insurance and self-insurance.
f. Notice of Cancellation or Change. There shall be no cancellation, material
change, potential exhaustion of aggregate limits or non-renewal of
insurance coverage(s) without thirty (30) days written notice from the
Contractor or its insurer(s) to State, City, and Developer. Any failure to
comply with the reporting provisions of this clause shall constitute a
material breach of contract and shall be grounds for immediate termination
of the resulting contract and this Agreement.
15.Pursuant to the statutory requirements of ORS 279C.380 Developer shall require
their contractor to submit a performance bond to Developer for an amount equal to
or greater than the estimated cost of the Project.
16.Developer shall, within ninety (90) calendar days of completion or termination
without completion of the Project, provide to State permanent mylar "as constructed"
plans for work on state highways. If Developer or its consultant redrafts the plans,
done in Computer Aided Design and Drafting (CADD) or Microstation, to get the "as
constructed" set, and they follow the most current version of the "Contract Plans
Development Guide, Volume 1 Chapter 16"
http://egov.oregon.gov/ODOT/HVVY/ENGSERVICES/cpdq.shtml, Developer shall
provide to State a Portable Document Format (PDF) file and a paper copy of the
plan set.
17.Developer shall, pursuant to OAR Chapter 734, Division 10 ensure that its contractor
has been prequalified and registered with the Construction Contractor's Board, to
function as the general contractor for the performance of this work. All obligations of
the Developer stated in this Agreement shall remain the responsibility of the
Developer regardless of whether or not a contractor performs the work. It is the
Developer's responsibility to inform any such contractor of its obligations.
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18.Developer shall, prior to its advertisement for construction bid proposals, provide the
Project final plans and specifications to State's Region 1 Project Services Section for
review and written concurrence.
19.The traffic signal plans and specifications must be approved by Office of the State
Traffic Engineer. All traffic signal plans and specifications for City signals must be
approved by City staff and will be inspected by representatives of the City. All signal
equipment must be inspected and tested by State's Traffic Systems Services Unit.
Any video detection equipment to be used with the traffic signal will need to be
reviewed and approved by the State Traffic Engineer to ensure proper location and
usage. State's Region 1 Project Services Section shall coordinate all such review.
20.Developer or its contractor shall follow the Oregon Locate Laws (ORS 757 and OAR
952).
21.For all work being performed on State facilities, Developer shall cause the Project to
be designed and constructed in accordance with State standards and shall, upon
completion of the Project, release ownership of all traffic signal equipment to State.
For all work being performed on City facilities, Developer shall cause the Project to
be designed and constructed in accordance with City standards.
22.Developer, or its contractor's electrical inspectors shall possess a current State
Certified Traffic Signal Inspector certificate, in order to inspect electrical installations
on State highways. The State Region 1 Project Services Section & District 2B
Permitting Office shall verify compliance with this requirement prior to construction.
Said inspectors must coordinate their traffic inspections with State Region 1 Project
Services Section and District 2B and Electrical inspectors during the course of the
Project.
23.Developer is responsible for and ensures that all survey monuments recorded with a
county and within or adjacent to the highway right of way shall be preserved in
accordance with ORS 209.140 and 209.150. Any such monumentation that is
damaged or removed during the course of the Project must be replaced in
compliance with ORS Chapter 209 stipulations, the State Right of Way
Monumentation Policy, and at Developer's own expense. Developer is also
responsible, at its own expense, for replacement of any additional State survey
marks or other monumentation not recorded with a county that are damaged or
removed during the course of the Project. In the event of such replacement,
Developer shall contact State's Geometronics Unit for replacement procedures.
24.Developer agrees that right of way identified by State or City that is required to
construct the highway and city street improvements as part of the Project, shall be
donated by Developer without cost to State or City. Developer shall coordinate
State right of way donations through the State Region 1 Right of Way Office.
25. If additional right of way is acquired for State highway right of way purposes as a
result of the Project, then a right of way monumentation survey is required as
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defined in ORS 209.150 and 209.155. Developer agrees to provide such a survey, at
its own expense, following ORS Chapter 209 stipulations, State Right of Way
Monumentation Policy, and State's Geometronics Unit review and approval, and to
file the legal survey with the appropriate county Surveyor's office as required.
26.In the event any portion of this Project affects railroad right of way, Developer shall
be responsible for notifying the appropriate railroad company of the Project, the
construction and approval of all required agreements and for all costs associated
with railroad related tasks identified above.
27.Developer certifies and represents that the individual(s) signing this Agreement has
been authorized to enter into and execute this Agreement on behalf of Developer,
under the direction or approval of its governing body, commission, board, officers,
members or representatives, and to legally bind Developer.
28.Developer's Project Manager for this Project is Steve Dyer, Walmart, 2001 SE 10th
Street, Mail Stop 5570, Bentonville, AR, 72716; 479-273-4567;
steve.dyer@walmart.com or assigned designee upon individual's absence.
Developer shall notify the other Parties in writing of any contact information changes
during the term of this Agreement.
STATE OBLIGATIONS
1. State shall, upon execution of the agreement, forward to Developer a letter of
request for an advance deposit in the amount of $90,000 for maintenance costs
associated with the storm water filter replacement required for the storm water
drainage facilities constructed as part of the Project.
2. Developer has, as of the date of execution of this Agreement, deposited $60,000
with State's District 2B office. If State anticipates that the advance deposit will be
exceeded, State will notify the Developer and send an additional request with the
estimate of costs. State will return any unused funds to the Developer after the
Project is completed.
3. State shall review and approve all Project plans prior to construction by Developer or
its contractor.
4. State shall, upon completion of Project and acceptance of Project by State, accept
jurisdiction and control of the state highway facilities constructed as part of the
Project.
5. State shall, at State expense, perform and be responsible for maintenance of Project
elements on State facilities.
6. State shall maintain the asphaltic concrete pavement surrounding the vehicle
detector loops installed in the highway in such a manner as to provide adequate
protection for said detector loops.
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7. State grants authority to Developer to enter upon State right of way for the
construction of this Project as provided for in miscellaneous permit to be issued by
State District 2B Office.
8. Consistent with the 2002 Policy Statement for Cooperative Traffic Control Projects,
Agreement 19719, between State and the agencies belonging to the Association of
Oregon Counties (AOC) or the League of Oregon Cities (LOC), State and City shall
each be responsible for fifty percent (50%) percent of the cost for maintenance,
operation and electricity for the signal equipment, excluding the detector loops, on
the 68`h / 1-5 SB Haines Street ramps as listed in Terms of Agreement Paragraph 1
subsection p. State shall perform the maintenance and be responsible for payment
for signal power to the power company. The power company shall send power bills
directly to State. State shall annually bill Agency for their fifty percent (50%) of the
combined maintenance, operations and electricity for the Project.
9. State's Project Manager for this Project is Bret Richards, PE, PLS, 123 NW Flanders
Street, Portland, OR 97209, 503-731-8288, bret.n.richards@odot.state.or.us, or
assigned designee upon individual's absence. State shall notify the other Parties in
writing of any contact information changes during the term of this Agreement.
GENERAL PROVISIONS
1. This Agreement may be terminated by mutual written consent of all Parties.
2. State may terminate this Agreement effective upon delivery of written notice to
Developer, or at such later date as may be established by State, under any of the
following conditions:
a. If Developer or City fails to provide services called for by this Agreement
within the time specified herein or any extension thereof.
b. If Developer or City 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 Developer or City 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
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prohibited or State is prohibited from paying for such work from the
planned funding source.
3. City may terminate this Agreement effective upon delivery of written notice to
Developer, or at such later date as may be established by City, under any of the
following conditions:
a. If Developer or State fails to provide services called for by this
Agreement within the time specified herein or any extension thereof.
b. If Developer or State 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 City fails to correct such failures within ten (10) days
or such longer period as State may authorize.
c. If Developer fails to provide payment of its share of the cost of the
Project.
d. 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.
4. Any termination of this Agreement shall not prejudice any rights or obligations
accrued to the Parties prior to termination.
5. Developer shall deliver to City and State all books, documents, papers, and records
of Developer and City, respectively, which are directly pertinent to the Project and
this Agreement within six (6) months of Project completion.
6. If any third party makes any claim or brings any action, suit or proceeding alleging a
tort as now or hereafter defined in ORS 30.260 ("Third Party Claim") against State or
City with respect to which the other Party may have liability, the notified Party must
promptly notify the other Party in writing of the Third Party Claim and deliver to the
other Party a copy of the claim, process, and all legal pleadings with respect to the
Third Party Claim. Each Party is entitled to participate in the defense of a Third Party
Claim, and to defend a Third Party Claim with counsel of its own choosing. Receipt
by a Party of the notice and copies required in this paragraph and meaningful
opportunity for the Party to participate in the investigation, defense and settlement of
the Third Party Claim with counsel of its own choosing are conditions precedent to
that Party's liability with respect to the Third Party Claim.
7. With respect to a Third Party Claim for which State is jointly liable with City(or would
be if joined in the Third Party Claim), State shall contribute to the amount of
expenses (including attorneys' fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred and paid or payable by City in such
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proportion as is appropriate to reflect the relative fault of State on the one hand and
of City on the other hand in connection with the events which resulted in such
expenses, judgments, fines or settlement amounts, as well as any other relevant
equitable considerations. The relative fault of State on the one hand and of City on
the other hand shall be determined by reference to, among other things, the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent the circumstances resulting in such expenses, judgments, fines or
settlement amounts. State's contribution amount in any instance is capped to the
same extent it would have been capped under Oregon law, including the Oregon
Tort Claims Act, ORS 30.260 to 30.300, if State had sole liability in the proceeding.
8. With respect to a Third Party Claim for which City is jointly liable with State (or would
be if joined in the Third Party Claim), City shall contribute to the amount of expenses
(including attorneys' fees), judgments, fines and amounts paid in settlement actually
and reasonably incurred and paid or payable by State in such proportion as is
appropriate to reflect the relative fault of City on the one hand and of State on the
other hand in connection with the events which resulted in such expenses,
judgments, fines or settlement amounts, as well as any other relevant equitable
considerations. The relative fault of City on the one hand and of State on the other
hand shall be determined by reference to, among other things, the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent the
circumstances resulting in such expenses, judgments, fines or settlement amounts.
City's contribution amount in any instance is capped to the same extent it would
have been capped under Oregon law, including the Oregon Tort Claims Act, ORS
30.260 to 30.300, if it had sole liability in the proceeding.
9. The Parties shall attempt in good faith to resolve any dispute arising out of this
Agreement. In addition, the Parties may agree to utilize a jointly selected mediator or
arbitrator (for non-binding arbitration) to resolve the dispute short of litigation.
10.If City fails to maintain facilities in accordance with the terms of this Agreement,
State, at its option, may maintain the facility and bill City, seek an injunction to
enforce the duties and obligations of this Agreement or take any other action allowed
by law.
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 any
Party unless in writing and signed by all 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
13
City /Developer/State
Agreement No. 28599
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 their signing
representatives have read this Agreement, understand it, and agree to be bound by its
terms and conditions.
SIGNATURE PAGE TO FOLLOW
14
City/Developer/State
Agreement No.28599
CITY OF TIGARD, by and through its elected STATE OF OREGON, by and through
officials its [Wof Transportatlon
Y
B B T-,
�
Mayor HigMvay�'b Vision Administrator
I
Date Date /,oZ 8Z(2--
By APPRgVAL RECOMMENDED
Recorder
By :L /'y
Date Technical Services MMOner/Chief t
EnlneaxI
Date
APPROVED AS TO LEGAL SUFFICIENCY
By
By
City Counsel — State Traffic Engineer
DatD I�
WALMART REAL ESTATE BUSINESS
TRUST, a Delaware Statutory Trust, by and By n
through its designated officlals Region anager i
By Date
Director of Project Management
By
Date Region 1 Project Services Manager
i
APPROVED AS TO LEGAL SUFFICIENCY Date o_9 Z.4 /Z
By
BY Regioh 1 Ma• b6&Operatloris
Developer Counsel Manager F
Date
Date j
APPROVED AS TO LEGAL
City Contact: SUFFICIENCY I
Kim McMillan,PE r —�
13125 SW Hall Boulevard By
Tigard,OR 97223 Assistant Attorney Genetal
503-718-2642
kim@tigard=or.gov Date
Davaloner Contact:
r-Walmart State Contact:
Stove[)�e2001 E 10t Street,Mail Stop 5670 Bret Richards,PE j
Bentonville,AR 72715 123 NW Flanders Street i
479.273-4567 Portland,OR 07209
steve.dyer@waimart.com 503-731-8288
bret.n.dchards@odot:state.or.us ;
� i
15 �
City /Developer/State
Agreement No. 28599
CITY OF TIGARD, by a t gh its elected STATE OF OREGON, by and through
officials its Department of Transportation
By BY
M r Highway Division Administrator
Date f, b y o1 Date
By IL�-21 „ �e-- APPROVAL RECOMMENDED
Recorder
By
Date Technical Technical Services Manager/Chief
Engineer
APPROVED AS TO LEGAL SUFFICIENCY Date
4)
ByBY
Cit Cou State Traffic Engineer
Date
WALMART REAL ESTATE BUSINESS
TRUST, a Delaware Statutory Trust, by and By
through its designated officials Region 1 Manager
By Date
Director of Project Management
By
Date Region 1 Project Services Manager
APPROVED AS TO LEGAL SUFFICIENCY Date
By
By Region 1 Maintenance & Operations
Developer Counsel Manager
Date
Date
APPROVED AS TO LEGAL
City Contact: SUFFICIENCY
Kim McMillan, PE
13125 SW Hall Boulevard By
Tigard, OR 97223 Assistant Attorney General
503-718-2642
kim@tigard-or.gov Date
Developer Contact:
Steve Dyer-Walmart State Contact:
2001 SE 10'”Street, Mail Stop 5570 Bret Richards, PE
Bentonville,AR 72716 123 NW Flanders Street
479-273-4567 Portland, OR 97209
steve.dyer@walmart.com 503-731-8288
bret.n.richards@odot.state.or.us
15
City /Developer/State
Agreement No. 28599
CITY OF TIGARD, by and through its elected STATE OF OREGON, by and through
officials its Department of Transportation
By By
Mayor Highway Division Administrator
Date Date
By APPROVAL RECOMMENDED
Recorder By
Date Technical Services Manager/Chief
Engineer
APPROVED AS TO LEGAL SUFFICIENCY Date
By BY
City Counsel State Traffic Engineer
Date
WALMART REAL EST A E BUSINESS
TRUST, a D 4,7are Statu ry Trust, by and By
through its ignated off i ials Region 1 Manager
By Frank Pampalone Date
Director of Project Management
By
Date j Region 1 Project Services Manager
APPR VED AS TO LEGAL SUFFICIENCY Date
By
By S Region 1 Maintenance & Operations
Developer Counsel Manager
Date 9 L 1 Z Date
APPROVED AS TO LEGAL
City Contact: SUFFICIENCY
Kim McMillan, PE
13125 SW Hall Boulevard By
Tigard, OR 97223 Assistant Attorney General
503-718-2642
kim@tigard-or.gov Date
Developer Contact:
Steve Dyer-Walmart State Contact:
2001 SE 10'h Street, Mail Stop 5570 Bret Richards, PE
Bentonville, AR 72716 123 NW Flanders Street
479-273-4567 Portland, OR 97209
steve.dyer@walmart.com 503-731-8288
bret.n.richard s@odot.state.or.us
15
City /Developer/State
Agreement No. 28599
EXHIBIT A •MISC.CONTRACTS AND AGREEMENTS#28599
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16