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ODOT - Red Rock Creek Tr Alignment Misc. Contracts and Agreements No. 35123 A156-G080719 ODOT Delivered Project Federal Project On Behalf of City of Tigard Project Name: Red Rock Creek Tr Alignment Study: Fanno Ck Tr-SW 64th Key Number: 22136 THIS AGREEMENT ("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" or "ODOT," and the CITY OF TIGARD, acting by and through its elected officials, hereinafter referred to as "Agency," both herein referred to individually as "Party" or collectively as "Parties." RECITALS 1. By the authority granted in Oregon Revised Statute (ORS) 190.110, 366.572 and 366.576, state agencies may enter into cooperative agreements with counties, cities and units of local governments 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. Fanno Creek Trail to SW 64th Street is a part of the city street system under the jurisdiction and control of Agency. 3. Agency has agreed that State will deliver this project on behalf of the Agency. 4. The Project was selected as a part of the RFFA Program (Regional Flexible Funds Allocation) and may include a combination of federal and state funds. "Project" is defined under Terms of Agreement, paragraph 1 of this Agreement. 5. The Stewardship and Oversight Agreement On Project Assumption and Program Oversight By and Between Federal Highway Administration, Oregon Division and the State of Oregon Department of Transportation ("Stewardship Agreement") documents the roles and responsibilities of the State with respect to project approvals and responsibilities regarding delivery of the Federal Aid Highway Program. This includes the State's oversight and reporting requirements related to locally administered projects. The provisions of that agreement are hereby incorporated and included by reference. 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, Agency and State agree to State delivering a feasibility study for the Red Rock Trail alignment on behalf of Agency, hereinafter referred to as "Project." Project includes implementation of the Red Rock Trail alignment feasibility study from Fanno Creek Trail to SW 64th Street (approximately 2 miles) to identify and evaluate preliminary alignments and develop preliminary cost assessments. The trail will provide active transportation options and overcome significant barriers to connectivity within the area. The 1 Agency/State Agreement No. 35123 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. Agency agrees that, if State hires a consultant to design the Project, State will serve as the lead contracting agency and contract administrator for the consultant contract related to the work under this Agreement. 3. The total Project cost is estimated at $350,000.00, which is subject to change. Federal funds for this Project shall be limited to $314,055.00. Agency shall be responsible for all remaining costs, including any non-participating costs, all costs in excess of the federal funds, and the 10.27 percent match for all eligible costs. Any unused funds obligated to this Project will not be paid out by State, and will not be available for use by Agency for this Agreement or any other projects. "Total Project Cost"means the estimated cost to complete the entire Project, and includes any federal funds, state funds, local matching funds, and any other funds. 4. Federal funds under this Agreement are provided under Title 23, United States Code. 5. ODOT considers Agency to be a third party under this Agreement. The Catalog of Federal Domestic Assistance (CFDA) number for this Project is 20.205, title Highway Planning and Construction. 6. With the exception of Americans with Disabilities Act of 1990 (ADA) related design standards and exceptions, State shall consult with Agency on Project decisions that impact Total Project Cost involving the application of design standards, design exceptions, risks, schedule, and preliminary engineering charges, for work performed on roadways under local jurisdiction. State will allow Agency to participate in regular meetings and will use all reasonable efforts to obtain Agency's concurrence on plans. State shall consult with Agency prior to making changes to Project scope, schedule, or budget. However, State may award a construction contract at ten (10) percent (%) over engineer's estimate without prior approval of Agency. 7. State will submit the requests for federal funding to Federal Highway Administration (FHWA). The federal funding for this Project is contingent upon approval of each funding request by FHWA. Any work performed outside the period of performance or scope of work approved by FHWA will be considered nonparticipating and paid for at Agency expense. 8. Agency guarantees the availability of Agency funding in an amount required to fully fund Agency's share of the Project. 9. The term of this Agreement shall begin on the date all required signatures are obtained and shall terminate upon completion of the Project and final payment or ten (10) calendar years following the date all required signatures are obtained, whichever is sooner. 10.This Agreement may be terminated by mutual written consent of both Parties. 11.State may terminate this Agreement effective upon delivery of written notice to Agency, or at such later date as may be established by State, under any of the following conditions: 2 Agency/State Agreement No. 35123 a. If Agency fails to provide services called for by this Agreement within the time specified herein or any extension thereof. b. If Agency 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 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 if State is prohibited from paying for such work from the planned funding source. 12.Any termination of this Agreement shall not prejudice any rights or obligations accrued to the Parties prior to termination. 13.Information required by 2 Code of Federal Regulation (CFR)200.331(a)(1)shall be contained in the USDOT FHWA Federal Aid Project Agreement for this Project, a copy of which shall be provided by ODOT to Agency with the Notice to Proceed. 14.Americans with Disabilities Act Compliance: a. The Parties shall utilize ODOT standards to assess and ensure that the Project and all component activities comply with Section 504 of the Rehabilitation Act of 1973 and the Americans with Disabilities Act of 1990 as amended (together, "ADA"), including ensuring that all plans and proposed alternatives for future design or construction of pedestrian, bicycle, and transit routes and facilities will result in ADA- compliant facilities and improvements. b. Agency shall ensure that temporary pedestrian routes are provided through or around any Project work zone where Agency is performing work. Any such temporary pedestrian route shall include directional and informational signs, comply with ODOT standards, and include accessibility features equal to or better than the features present in the existing pedestrian facility. Agency shall also ensure that advance notice of any temporary pedestrian route is provided in accessible format to the public, people with disabilities, and disability organizations at least 10 days prior to the establishment of any work zone. 15.State shall ensure compliance with the Cargo Preference Act and implementing regulations (46 CFR Part 381) for use of United States-flag ocean vessels transporting materials or equipment acquired specifically for the Project. Strict compliance is required, including but not limited to the clauses in 46 CFR 381.7(a) and (b) which are incorporated by reference. State shall also include this requirement in all contracts and ensure that contractors include the requirement in their subcontracts. 3 Agency/State Agreement No. 35123 16.Agency grants State the right to enter onto Agency right of way for the performance of duties as set forth in this Agreement. 17.The Special and Standard Provisions attached hereto, marked Attachments 1 and 2, respectively, are by this reference made a part hereof. The Standard Provisions apply to all federal-aid projects and may be modified only by the Special Provisions. The Parties hereto mutually agree to the terms and conditions set forth in Attachments 1 and 2. In the event of a conflict, this Agreement shall control over the attachments, and Attachment 1 shall control over Attachment 2. 18.Agency 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 FHWA, 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. 19.State and Agency 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. 20.Agency certifies and represents that the individual(s) signing this Agreement has been authorized to enter into and execute this Agreement on behalf of Agency, under the direction or approval of its governing body, commission, board, officers, members or representatives, and to legally bind Agency. 21.This Agreement may be executed in several counterparts 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. 22.This Agreement and attached exhibits constitute the entire agreement between the Parties on the subject matter hereof. In the event of conflict, the body of this Agreement and the attached exhibits will control over Project application and documents provided by Agency to State. 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 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. Notwithstanding this provision, the Parties may enter into a Right Of Way Services Agreement in furtherance of the Project. 23.State's Contract Administrator for this Agreement is Justin Bernt, R1 Local Agency Liaison, 123 NW Flanders Street, Portland, Oregon 97209-4012, (503) 731-3016, 4 Agency/State Agreement No. 35123 iustin.j.bernt anodot.state.or.us, or assigned designee upon individual's absence. State shall notify the other Party in writing of any contact information changes during the term of this Agreement. 24.Agency's Contract Administrator for this Agreement is Gary Pagenstecher, AICP CUD Project Planner, Urban Design, 13125 SW Hall Blvd., Tigard, OR 97223, 503-956-9430, Garyp(cD-tigard-or.gov, or assigned designee upon individual's absence. Agency shall notify the other Party in writing of any contact information changes during the term of this Agreement. SIGNATURE PAGE TO FOLLOW 5 Agency/State Agreement No. 35123 SPECIAL PROVISIONS 1. State or its consultant shall conduct all work components necessary to complete the Project, except for those responsibilities specifically assigned to Agency in this Agreement. State will perform project management and oversight activities throughout the duration of the Project. The cost of such activities will be billed to the Project. 2. State and Agency agree that the useful life of this Project is defined as ten (10) years. 3. If Agency fails to meet the requirements of this Agreement or the underlying federal regulations, State may withhold the Agency's proportional share of Highway Fund distribution necessary to reimburse State for costs incurred by such Agency breach. Agency will be ineligible to receive or apply for any Title 23, United States Code funds until State receives full reimbursement of the costs incurred. 8 Agency/State Agreement No. 35123 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. This Project is in the 2021-2024 Statewide Transportation Improvement Program (STIP), (Key 622136) that was adopted by the Oregon Transportation Commission on July 15, 2020 (or subsequently by amendment to the STIP). CITY OF TIGARD, by and through its STATE OF OREGON,by and through elected officials its Depa ent of Transportation By _t}r_ By Delivery&Operations Division Administrator Title City Manager Date 06/22/2021 Date June 17.2021 APPROVAL RECOMMENDED By By,-'tel/�✓- —� Region 1 Manager Title Date �,-•z 2-acs 1 Date APPROVED AS TO LEGAL LEGAL REVIEW APPROVAL SUFFICIENCY (ff required in Agency's process) By Herbert Lovejoy via entail By Assistant Attorney General Agency Counsel Date6/1121 Date State Contact: Agency Contact: Justin Bernt Gary Pagenstecher, AICD CUD Project Region 1 Local Agency Liaison Planner, Urban Design Oregon Department of Transportation 13125 SW Hall Blvd. 123 NVQ Flanders St Tigard, OR 97223 Pordand Oregon,97209-4012 503-956-9430 503-731-3016 Garyp(MtiQard-or._qov iustin.i.bemtlModotstate.or.us 6 Agency/State Agreement No. 35123 EXHIBIT A— Project Location Map Proposed Red Rock Creek Trail :r ---- r s - -':c. ,—#_�i,a �.. * '•� i. , , w Ili "ZI r ' '%r' n•�'� .a i',u :%�`e AT' i r r+ff" �v aaar' w y .ai 71 a ( a 'r I a .. ., L� w. I, 1 �� ' (�� 41"1"" �� k 1..w r •'• " "iy'µr}' -,� AW 3N"S� � jY W. ,•ht � i Community Oe velopmeni N 1Jf26 SW Hatt Bivd M Transit Stations =Proposed Pedestrian/Bike&'idges TigardOregwi 97223 /'V Existing Regional Trails 1 e 503-7,18-2434 ®Proposed Red Rock Creek Trail Alignment Proposed Regional Trail Extension www.tigard•or.gov Private Property Letters of Support /` 'Existing/Approved Local Trails y Date:6!2012019 SWC LRT LPA Alignment Proposed 70th St Connector ATTACHMENT NO. 1 to AGREEMENT NO. 35123 7