ODOT ~ IG200003 ~ Local Agency Agreement State Funded Local Project Program OR99W (Barbur Blvd): MP8.01 To MP 11.50 Misc. Contracts and Agreements
No. 33625/73000-00004069
A136-G0092418
AMENDMENT NUMBER 01
LOCAL AGENCY AGREEMENT
State Funded Local Project Program
OR99W (Barbur Blvd): MP 8.01 to MP 11.50
This is Amendment No. 01 to the Agreement 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," entered into on April 3, 2020.
It has now been determined by State and Agency that the Agreement referenced above
shall be amended to change scope in Revised Exhibit A.
1. Effective Date. This Amendment shall become effective on the date it is fully
executed and approved as required by applicable law.
2. Amendment to Agreement.
a. Exhibit A shall be deleted in its entirety and replaced with the attached
Revised Exhibit A. All references to "Exhibit A" shall hereinafter be referred
to as "Revised Exhibit A."
3. Counterparts. This Amendment may be executed in two or more counterparts (by
facsimile or otherwise) each of which is an original and all of which when taken
together are deemed one agreement binding on all Parties, notwithstanding that all
Parties are not signatories to the same counterpart.
4. Original Agreement. Except as expressly amended above, all other terms and
conditions of the original Agreement are still in full force and effect. Agency certifies
that the representations, warranties and certifications in the original Agreement are
true and correct as of the effective date of this Amendment and with the same effect
as though made at the time of this Amendment.
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 2018-2021 Statewide Transportation Improvement Program
(STIP), (Key #20439) that was adopted by the Oregon Transportation Commission on
July 20, 2017 (or subsequently by amendment to the STIP).
SIGNATURE PAGE TO FOLLOW
Key No. 20439
Agency/State
Agreement No. 33625-01 /73000-00004069
CITY OF TIGARD, by and through its STATE OF OREGON, by and through
elected officials its Department of Transportation
By Sr¢� By M '�W -
2��
Delivery and Gperat ns Division Administrator- Deputy
Date 8/5/2021 Date 10/06/2021
LEGAL REVIEW APPROVAL APPROVAL RECOMMENDED
{if required in Agency's process}
By . ��—
By /� Regi6n 1 Manager
Agency Counsel
Date
Date 8/4/2021
Agency Contact: By Shyam Sharma via email
Tegan Enloe Region 1 Traffic Manager
13125 SW Hall Blvd.
Tigard, OR 97223 Date 9/15/2021
503-715-2442
Digitally signed by HAAS Kevin J
teganegfigard-or.gov �By Date.2021.08.0608:43:02-06'00'
State Traffic/Roadway Engineer
Date
APPROVED AS TO LEGAL
SUFFICIENCY
By Karen Clevering via email
Assistant Attorney General
Date:6/9/21
State Contact:
Reem Khaki
123 NW Flanders Street
Portland, OR 97217
503-731-8501
Reem.d.khakiCaD-odot.state.or.us
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Agreement No. 33625/73000-00004069
REVISED EXHIBIT A— Project Location and Scope of Work
As part of the Project set forth in this Agreement, Agency will construct the following
improvements at the following locations:
Location: OR 99W (Barbur Blvd)
Install illumination at SW Bull Mountain Road, 72nd Ave, McKenzie School, SW
Frewing Street, SW Garrett Street, SW Park Street, Royalty Parkway, and Durham
Road.
Install a bike lane connection from SW Bull Mountain Road to 99W and associated
pavement, drainage, and signal modifications.
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Misc. Contracts and Agreements
No.33625
LOCAL AGENCY AGREEMENT
State Funded Local Project Program
OR99W (Barbur Blvd): MP 8.01 to MP 11.50
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" or "ODOT;" and the CITY OF TIGARD, acting by and through its elected
officials, hereinafter referred to as "Agency," both herein referred to individually or
collectively as "Party" or "Parties."
RECITALS
1. Agency wishes to exchange unspent federal funds previously allocated to the
Project for state funds, in order to fund the Project using state funding. State has
determined that Agency is eligible for state funds for the work to be performed under
this Agreement through the State Funded Local Project Program. The Parties enter
into this Agreement to exchange these funds, identify the Project that will be funded
with the state funds, and describe the method State will use to reimburse Agency for
work performed on the Project using the state funds, including establishing invoicing
requirements and the proportional reimbursement rate.
2. 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 government 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.
3. OR 99W is a part of the state highway system under the jurisdiction and control of
the Oregon Transportation Commission (OTC). 72nd Ave, Main & Johnson,
McKenzie School, Walnut, Frewing, Garrett, Park, Royalty Parkway, and Durham
Road are a part of the city street system under the jurisdiction and control of
Agency.
4. State and Agency entered into Agreement 32976 covering the subject Project
wherein State was going to deliver the Project on behalf of Agency. Agency has
decided to deliver the Project through the Locally Delivered State Funded Project
Program.
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. This Agreement shall supersede and replace Agreement No. 32976 and its
supplements in its entirety. Agreement No. 32976 is terminated upon execution of
this Agreement. Bills for preliminary engineering work incurred prior to the
replacement of Agreement No. 32976 shall be invoiced by Agency and paid for by
State under this Agreement.
Key No. 20439
Agency/State
Agreement No. 33625
2. State and Agency agree to Agency delivering the OR99W (Barbur Blvd): MP 8.01 to
MP 11.50 project hereinafter referred to as "Project." The Project scope and location
are further set forth in Exhibit A, attached hereto and by this reference made a part
hereof.
3. The total Project cost for the work to be performed under this Agreement is
estimated at $1,000,000, which is subject to change. Prior to exchanging funds, the
federal share of the total Project cost is $922,200.
a. Per the 1:1 fund exchange ratio of state dollars to federal dollars, Agency will
exchange $922,200 of federal dollars allocated for this Project for $922,200 of
state dollars.
b. State funds under this Agreement are limited to $922,200.
4. Upon receipt and approval of Agency's invoice(s), State shall proportionately
reimburse Agency 92.22 percent of eligible, actual costs incurred in carrying out the
Project, up to the maximum amount of state funds committed for the Project.
5. Agency is solely responsible for any and all costs incurred in excess of the state
funds identified in this Agreement. Any unspent state funds will be retained by State
and will not be available for Agency use. State funds transferred to Agency must be
used for the Project.
6. To be eligible for reimbursement, expenditures must comply with the requirements
of Article IX, Section 3a of the Oregon Constitution. Eligible costs are defined as
reasonable and necessary costs incurred by the Agency in performance of the
Project.
7. The term of this Agreement will begin upon the date all required signatures are
obtained and will terminate upon completion of the Project and final payment or ten
(10) calendar years following the date of final execution, whichever is sooner.
AGENCY OBLIGATIONS
1. Agency shall perform the work described in TERMS OF AGREEMENT, Parargraph
1 of this Agreement.
2. Americans with Disabilities Act Compliance:
a. State Highway: For portions of the Project located on or along the State Highway
System or a State-owned facility ("state highway"):
i. Agency shall utilize ODOT standards to assess and ensure Project
compliance 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 sidewalks, curb ramps, and pedestrian-activated
signals meet current ODOT Highway Design Manual standards;
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ii. Agency shall follow ODOT's processes for design, construction, or alteration
of sidewalks, curb ramps, and pedestrian-activated signals, including using
the ODOT Highway Design Manual, ODOT Design Exception process, ODOT
Standard Drawings, ODOT Construction Specifications, providing a
temporary pedestrian accessible route plan and current ODOT Curb Ramp
Inspection form;
iii. At Project completion, Agency shall send a completed ODOT Curb Ramp
Inspection Form 734-5020 to the address on the form as well as to State's
Project Manager for each curb ramp constructed or altered as part of the
Project. The completed form is the documentation required to show that each
curb ramp meets ODOT standards and is ADA compliant. ODOT's fillable
Curb Ramp Inspection Form and instructions are available at the following
address:
https://www.oregon.gov/ODOT/Engineering/Pages/AccessibilitV.aspx.
iv. Agency shall promptly notify ODOT of Project completion and allow ODOT to
inspect Project sidewalks, curb ramps, and pedestrian-activated signals
located on or along a state highway prior to acceptance of Project by Agency
and prior to release of any Agency contractor.
v. Agency shall shall ensure that temporary pedestrian routes are provided
through or around any Project work zone. 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, disability
organizations, and ODOT at least 10 days prior to the start of construction.
b. Local Roads: For portions of the Project located on Agency roads or facilities that
are not on or along a state highway:
i. Agency shall ensure that the Project, including all sidewalks, curb ramps, and
pedestrian-activated signals, is designed, constructed, and maintained in
compliance with the ADA.
ii. Agency may follow its own processes or may use ODOT's processes for
design, construction, or alteration of Project sidewalks, curb ramps, and
pedestrian-activated signals, including using the ODOT Highway Design
Manual, ODOT Design Exception process, ODOT Standard Drawings, ODOT
Construction Specifications, providing a temporary pedestrian accessible
route plan and current Curb Ramp Inspection form, available at:
https://www.oregon.gov/ODOT/Engineering/Pages/Accessibility.aspx;
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Additional ODOT resources are available at the above-identified link. ODOT
has made its forms, processes, and resources available for Agency's use and
convenience.
iii. Agency assumes sole responsibility for ensuring that the Project complies
with the ADA, including when Agency uses ODOT forms and processes.
Agency acknowledges and agrees that ODOT is under no obligation to review
or approve Project plans or inspect the completed Project to confirm ADA
compliance.
c. Agency shall ensure that temporary pedestrian routes are provided through or
around any Project work zone. Any such temporary pedestrian route shall
include directional and informational signs and include accessibility features
equal to or better than the features present in the existing pedestrian route.
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 prior to the start of construction. Agency shall ensure that
any portions of the Project under Agency's maintenance jurisdiction are
maintained in compliance with the ADA throughout the useful life of the Project.
This includes, but is not limited to, Agency ensuring that:
i. Pedestrian access is maintained as required by the ADA,
ii. Any complaints received by Agency identifying sidewalk, curb ramp, or
pedestrian-activated signal safety or access issues are promptly evaluated
and addressed,
iii. Agency, or abutting property owner, pursuant to local code provisions,
performs any repair or removal of obstructions needed to maintain the facility
in compliance with the ADA requirements that were in effect at the time the
facility was constructed or altered,
iv. Any future alternation work on Project or Project features during the useful life
of the Project complies with the ADA requirements in effect at the time the
future alteration work is performed, and
v. Applicable permitting and regulatory actions are consistent with ADA
requirements.
Maintenance obligations in this section shall survive termination of this
Agreement.
3. Agency shall follow the Buy America statute under Title 23, United States Code,
Section 313. Such provision shall be included as part of the construction contract.
4. Agency shall obtain a permit to occupy State right of way through the State District
2B Office prior to the commencement of construction.
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5. If Project includes traffic signal or illumination improvements on or along a state
highway, Agency shall:
a. Obtain a miscellaneous permit to occupy State right of way through the State
District 2B Office prior to the commencement of construction.
b. Pursuant to Oregon Administrative Rule (OAR) 734-020-0430, obtain the
approval of the State Traffic Engineer prior to the design and construction of any
traffic signal or illumination to be installed on a state highway.
c. Ensure Agency, or its contractor's, electrical inspectors possess a current State
Certified Traffic Signal Inspector certificate, in order to inspect electrical
installations on State highways. The State District Permitting Office shall verify
compliance with this requirement prior to construction. The permit fee should
also cover the State electrician's supplemental inspection.
6. Agency shall submit all of the following items to State's Project Manager, at Project
completion and prior to final payment:
a. Final Project completion Inspection form No. 734-5063 (completed with State's
Project Manager);
b. Final Cost;
c. As-Constructed Drawings
7. Agency must obtain approval from the Region 1 Traffic Manager for changes to the
Project's scope, schedule, or budget by submitting a request through State's project
liaison or manager by written notification, e-mail is acceptable. Agency shall be fully
responsible for cost increases due to changes to the established Project scope,
schedule, or budget made prior to approval. The Parties shall execute an
amendment to this Agreement to memorialize any approved changes referenced in
this paragraph.
8. Agency shall present invoices for the eligible, actual costs incurred by Agency on
behalf of the Project directly to State's Project Manager listed in this Agreement for
review and approval. Such invoices shall be in a form identifying the Project, Key
number, the Agreement number, the Project phase and amount charged to each
(such as preliminary engineering, right of way, and construction), the invoice
number, and will itemize all expenses for which reimbursement is claimed. Invoices
shall be presented for periods greater than one month, based on actual expenses
incurred, and must clearly specify the percentage of completion of the Project.
Agency shall also include with the invoice a Project progress report or summary that
describes work accomplished for the period being invoiced and work expected for
the next invoicing period. Travel expenses will not be reimbursed.
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9. Agency, or its consultant, shall conduct the necessary preliminary engineering and
design work required to produce final plans, specifications and cost estimates in
accordance with current state and federal laws and regulations; obtain all required
permits; be responsible for all utility relocations; advertise for bid proposals; award
all contracts; perform all construction engineering; and make all contractor payments
required to complete the Project.
10.Agency or its consultant shall acquire all necessary right of way in accordance with
the Uniform Relocation Assistance and Real Property Acquisition Policies Act of
1970, as amended, ORS Chapter 35 and the State Right of Way Manual.
11.Agency 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
and 2796.270 incorporated herein by reference and made a part hereof. Without
limiting the generality of the foregoing, Agency expressly agrees to comply 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.Agency shall perform the services 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.
13.All employers, including Agency, 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. Agency shall ensure that each of its
subcontractors complies with these requirements.
14.Agency shall, at its own expense, maintain, operate, and provide power as needed
upon Project completion at a minimum level that is consistent with normal
depreciation and/or service demand and throughout the useful life of the Project.
State and Agency agree that the useful life of this Project is defined as 20 years.
Maintenance and power responsibilities shall survive any termination of the Project
Agreement.
15.Utility relocation or reconstruction may or may not be an eligible Project expense
according to the following standard:
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Agreement No. 33625
a. The expense is an eligible expense if the owner of the utility facility possesses a
property right for its location on the public right of way.
b. The expense is not an eligible expense if the owner of the utility facility does not
possess a property right for its location, but the facility exists on the public right
of way solely under the permission of the Agency or other road authority,
whether that permission is expressed or implied, and whether written or oral.
16.Agency certifies, at the time this Agreement is executed, that sufficient funds are
available and authorized for expenditure to finance costs of this Agreement within
Agency's current appropriation or limitation of the current budget. Agency further
agrees that they will only submit invoices to State for reimbursement on work that
has been performed and paid for by Agency as described in this Agreement.
17.Agency shall require its contractor(s) and subcontractor(s) that are not units of local
government as defined in ORS 190.003, if any, to indemnify, defend, save and hold
harmless the State of Oregon, Oregon Transportation Commission and its
members, Oregon Department of Transportation and its officers, employees and
agents from and against any and all claims, actions, liabilities, damages, losses, or
expenses, including attorneys' fees, arising from a tort, as now or hereafter defined
in ORS 30.260 (Claims), to the extent such Claims are caused, or alleged to be
caused by the negligent or willful acts or omissions of Agency's contractor or any of
the officers, agents, employees or subcontractors of the contractor. It is the specific
intention of the Parties that State shall, in all instances, except to the extent Claims
arise from the negligent or willful acts or omissions of the State, be indemnified from
and against all Claims caused or alleged to be caused by the contractor or
subcontractor.
18.Any such indemnification shall also provide that neither Agency's contractor and
subcontractor nor any attorney engaged by Agency's contractor and subcontractor
shall defend any claim in the name of the State of Oregon or any agency of the
State of Oregon, nor purport to act as legal representative of the State of Oregon or
any of its agencies, without the prior written consent of the Oregon Attorney
General. The State of Oregon may, at anytime at its election assume its own
defense and settlement in the event that it determines that Agency's contractor is
prohibited from defending the State of Oregon, or that Agency's contractor is not
adequately defending the State of Oregon's interests, or that an important
governmental principle is at issue or that it is in the best interests of the State of
Oregon to do so. The State of Oregon reserves all rights to pursue claims it may
have against Agency's contractor if the State of Oregon elects to assume its own
defense.
19.If Agency enters into a construction contract for performance of work for the Project,
then Agency will include provisions in that contract requiring its contractor to comply
with the following:
a. Contractor and Agency shall name State as a third party beneficiary of the
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Agreement No. 33625
resulting contract.
b. Contractor shall indemnify, defend and hold harmless State from and 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.
c. Commercial General Liability. Contractor shall obtain, at Contractor's expense,
and keep in effect during the term of the resulting contract, Commercial General
Liability Insurance covering bodily injury and property damage in a form and with
coverages that are satisfactory to State. 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 ® $1,000,000 ❑ $2,000,000 ❑ $5,000,000 for each job site or
location. Each annual aggregate limit shall not be less than ❑ $1,000,000
$2,000,000 ❑ $4,000,000 ❑ 10,000,000.
d. Automobile Liability. Contractor shall obtain, at Contractor's expense, and keep
in effect during the term of the resulting 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 Endorsement. The liability insurance coverage, except
Professional Liability, Errors and Omissions, or Workers' Compensation, if
included, required for performance of the resulting contract will include State 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. Any failure to comply with the reporting provisions of this
clause shall constitute a material breach of the resulting contract and shall be
grounds for immediate termination of the resulting contract and this Agreement.
20.Agency acknowledges and agrees that State, the Oregon Secretary of State's
Office, and their duly authorized representatives shall have access to the books,
documents, papers, and records of Agency which are directly pertinent to the
specific Agreement for the purpose of making audit, examination, excerpts, and
transcripts during the course of the Project and for a period of six (6) years after final
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Agreement No. 33625
payment. Copies of applicable records shall be made available upon request.
Payment for costs of copies is reimbursable by State.
21.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.
22.Agency's Project Manager for this Agreement is Tegan Enloe, PE, Senior Project
Engineer, 13125 SW Hall Blvd, Tigard, OR 97223, 503-718-2442, tegane@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.
STATE OBLIGATIONS
1. In consideration for the services performed under this Agreement, State shall
reimburse Agency 92.22 percent of eligible costs incurred in carrying out the Project
up to the maximum amount of state funds committed for the Project in Terms of
Agreement, Paragraph 2 of this Agreement. Reimbursements shall be made by
State within forty-five (45) days of State's approval of a request for reimbursement
from Agency, except that final payment will be withheld until the State's Project
Manager has completed final project inspection and project acceptance.
2. State shall provide the following items to Agency's Project Manager no later than 30
days after execution of this Agreement:
a. Scoping Notes; and
b. Any other project specific information gathered during the scoping and selection
process
3. State's Project Manager will arrange for a final project inspection upon notification
from Agency of Project completion, to confirm project completeness and fulfillment
of Agreement obligations, prior to final payment.
4. State's Project Manager for this Agreement is Reem Khaki, 123 NW Flanders
Street, Portland, OR 97217, 503-731-8501, reem.d.khaki @odot.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.
GENERAL PROVISIONS
1. This Agreement may be terminated by mutual consent of both Parties.
2. 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:
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Agreement No. 33625
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.
3. If State terminates this Agreement for the reasons described in General Provisions
2(a) or (b) above, Agency must reimburse State for all state funds expended. If
Agency fails to reimburse State, State may withhold Agency's proportional share of
State Highway Fund distribution necessary to reimburse State for costs incurred by
such Agency breach.
4. Any termination of this Agreement shall not prejudice any rights or obligations
accrued to the Parties prior to termination.
5. 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 Agency 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.
6. With respect to a Third Party Claim for which State is jointly liable with Agency (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 Agency in such
proportion as is appropriate to reflect the relative fault of State on the one hand and
of Agency 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 Agency
on the other hand shall be determined by reference to, among other things, the
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Agreement No. 33625
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.
7. With respect to a Third Party Claim for which Agency is jointly liable with State (or
would be if joined in the Third Party Claim), Agency 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 Agency 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 Agency 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. Agency'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.
8. 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.
9. State and Agency are the only Parties to this Agreement and, as such, are the only
Parties entitled to enforce its terms. Nothing in this Agreement gives or shall be
construed to give or provide any benefit, direct, indirect or otherwise to third persons
unless such third persons are expressly identified by name and specifically
described as intended to be beneficiaries of its terms.
10.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.
11.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 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 either Party to enforce any provision of this Agreement shall not constitute a
waiver by that Party 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
11
Agency/State
Agreement No. 33625
terms and conditions.
This Project is in the 2018-2021 Statewide Transportation Improvement Program
(STIP), (Key #20439) that was adopted by the Oregon Transportation Commission on
July 20, 2017 (or subsequently by amendment to the STIP).
12
Agency/State
Agreement No. 33625
CITY OF TIGARD, by and through its STATE OF OREGON, by and through
elected officials its Department of Transportation
By By
Highway Divi ion ministrator
Date
Date -11131-2-02-0
By
APPROVAL RECOMMENDED
Date By
LEGAL REVIEW APPROVAL (If required Region 1 Manager
In Agenc 's process)
Date
By
Agency Counsel
By Shyam Sharma Mar 30 2020 2:22 PM
Date a-U a-u Region 1 Traffic Manager
Agency Contact: Date
Tegan Enloe
13125 SW Hall Blvd.
Tigard, OR 97223 APPROVED AS TO LEGAL
503-718-2442 SUFFICIENCY
tegane@tigard-or.gov
By Karen Clevering
State Contact: Assistant Attorney General (If Over
Reem Khaki $150,000)
123 NW Flanders Street
Portland, OR 97217 Date via email dated January 22, 2020
503-731- 8501
Reem.d.khaki@odot.state.or.us
13
Agency/State
Agreement No. 33625
EXHIBIT A— Project Location and Scope of Work
As part of the Project set forth in this Agreement, Agency will construct the following
improvements at the following locations:
Location: OR 99W (Barbur Blvd)
Install illumination at 72nd Ave, Main & Johnson, McKenzie School, Walnut, Frewing,
Garrett, Park, Royalty Parkway, and Durham Road.
14