ODOT - Pacific Hwy/99W Sidewalk Improvement F-
�� a� rewn Oregon Department of Transportation
VVV Support Services
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Theodore R.Kulongoski,Governor Procurement Office
59 455 Airport Rd. SE, Bldg. K
Salem, OR 97301-5348
0
February 8, 2010 M:P
®f-TIC,
City of Tigard
Attn: Kim McMillan
13125 SW Hall Blvd.
Tigard, OR 97223
Dear Ms. McMillan,
We have enclosed one original for your files of the fully executed Agreement# 24881 for our
upcoming project which covers Pacific Highway/99W Sidewalk Improvement Landscaping:
Gaarde Street to Canterbury Lane. This Agreement has been signed by all parties.
We have retained one signed original of the fully executed Agreement# 24881 on file at the
Oregon Department of Transportation.
If you have any questions regarding this Agreement, please contact me at my e-mail address
jule.youngren@odot.state.or.us or at (503) 986-2731.
Sincerely,
q(_LL +11 "
Jule Youngren
Agreements Technical Assistant
ODOT Procurement Office
Enclosure
Misc. Contracts and Agreements
No. 24,881
MAINTENANCE AGREEMENT
Pacific Highway/99W Sidewalk Improvement Landscaping
Gaarde Street to Canterbury Lane
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 "ODOT"; and the City of
Tigard, acting by and through its elected officials, hereinafter referred to as "CITY," collectively
hereinafter referred to as the"PARTIES."
RECITALS
1. Pacific Highway West/OR 99W, hereinafter referred to as 99W, is a part of the state highway
system under the jurisdiction and control of the Oregon Transportation Commission (OTC).
Gaarde Street and Canterbury Lane are part of the city street system under the jurisdiction and
control of CITY.
2. By the authority granted in Oregon Revised Statue (ORS) 190.110, 366.572 and 366.576,
ODOT 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. ODOT will be constructing a Statewide Transportation Improvement Program (STIP) project
for sidewalk improvements on 99W within the Tigard city limits from Gaarde Street (MP
10.36) to Canterbury Lane (MP 10.55). Concurrently and contiguous to the ODOT project to
improve a main gateway route, the CITY will be constructing landscape improvements and
adding artwork or gateway features behind the edge of curb of the highway within the Project
limits. The CITY's Project shall be constructed on ODOT right of way.
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, ODOT and CITY agree to the CITY's construction of landscaping
improvements on 99W from Gaarde Street to Canterbury Lane. Said landscaping
improvements shall include trees and other plantings, irrigation facilities, and artwork or
gateway features, hereinafter referred to as "Project". The location of the Project is
approximately as shown on the sketch map attached hereto, marked Exhibit A, and by this
reference made a part hereof.
Agreement No. 24,881
City of Tigard
2. The CITY's estimated cost for the Project is $15,000. The estimate for the total Project cost
is subject to change. The CITY shall be responsible for all construction, maintenance, water
and electrical costs for the 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 responsibilities for the useful
life of the facilities constructed as part of the Project. The useful life is defined as twenty(20)
calendar years. The Project shall be completed within five (5) calendar years following the
date of final execution of this Agreement by both Parties.
CITY OBLIGATIONS
1. Upon obtaining a permit to "Occupy or Perform Operations upon a State Highway" from
assigned ODOT District 2A Project Manager, the CITY shall, at no cost to ODOT, be
responsible for construction, maintenance, electrical costs and water for any landscape
improvements and art or gateway features within the Project limits on ODOT right of way.
CITY shall submit a list of all plantings CITY intends to be planted for the Project for
ODOT approval. The Project's construction shall be within the same schedule as the ODOT's
STIP Sidewalk Improvement project.
2. CITY agrees to comply with all provisions of ODOT issued permits and shall require its
contractors, subcdhtractors, or consultants performing work on the Project within state right
of way to comply with such provisions.
3. CITY shall, upon ODOT's written review and concurrence of final plans, prepare the contract
and bidding documents, advertise for construction bid proposals, award all contracts, pay all
contractor costs, furnish all construction engineering, field testing of materials, technical
inspection, and Project manager services for administration of the contract.
4. The Project shall be maintained at the same level of service as are similar CITY facilities,
with the following exceptions as applicable to the Project:
a. Water quality improvements affecting 99W within the Project area shall be maintained as
follows: ditches must maintain adequate flow; vegetation, if present, shall serve as a
sediment filter; vegetation shall be no more than 6" (inches) -10" (inches) high; there
shall be only minor unintended pooling;
b. To meet the sight distance needs on 99W the following shall be maintained as follows:
roadside vegetation shall be no higher than 18"(inches); there shall be few obstructions
in the clear zone; and vegetation shall not impede traffic movement and operation along
the Highways.
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Agreement No. 24,881
City of Tigard
c. Maintenance of landscaping shall include replacement of dead or dying plants and trees,
removal of litter, removal of weeds or weed control, removal of plants ODOT has
determined to be invasive species, and tree trimming to maintain a 17' (foot) clear zone
in the travel lane, leaf removal, and irrigation for healthy sustainability of landscaping.
d. To ensure safety of the traveling public, the trees planted and maintained by CITY
within the Project boundaries shall not block, impede or unreasonably limit the
peripheral vantage point of the driving public.
5. CITY shall, at no cost to ODOT, be responsible for 100 percent of maintenance, water, and
electrical costs associated with the Project. CITY shall ensure that the water and power
companies send water and electrical bills directly to CITY. All water and electrical systems
necessary to maintain the Project shall be separate from ODOT systems.
6. CITY shall, upon successful completion and acceptance of each portion of Project by ODOT,
relinquish all physical improvements made as part of Project within ODOT jurisdiction to
ODOT,except CITY purchased portable items such as artwork or removable benches.
7. CITY shall, to the extent permitted by the Oregon Constitution and the Oregon Tort Claims
Act, indemnify, defend, save, and hold harmless 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 the Project
Improvements. CITY shall require the same of its designees chosen to fulfill the maintenance
requirements of this Agreement, as well as the following paragraph.
8. Notwithstanding the foregoing defense obligations under the paragraph above, neither CITY
nor any attorney engaged by CITY 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 CITY is prohibited from defending the State of
Oregon, or that CITY 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 any claims it may have
against CITY if the State of Oregon elects to assume its own defense.
9. CITY 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 27913.270 incorporated
herein by reference and made a part hereof; Without limiting the generality of the foregoing,
CITY 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
3
Agreement No. 24,881
City of Tigard
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.
10. CITY shall construct the Project in accordance with the requirements of ORS 276.071 including
the public contracting laws within ORS Chapters 279A, 279B and 279C.
11. If CITY chooses to assign its contracting responsibilities to a consultant or contractor, CITY
shall inform the consultant or contractor of the requirements of ORS 276.071, to ensure that the
public contracting laws within ORS Chapters 279A, 279B and 279C are followed.
12. CITY shall, without expense to ODOT, take all steps necessary to effectively protect the
adjacent ODOT transportation facilities from any damage or incident from CITY activities
within the Project area. CITY shall be liable to and shall reimburse ODOT for any damage to
ODOT's facilities resulting from or reasonably attributed to CITY's installation, repair or
landscape maintenance for the Project.
13. The CITY shall include the following Special Provisions in all contracts for contractor work
for this Project: :
a. Contractor shall indemnify MOT and CITY and name MOT and CITYas third party
beneficiaries of the resulting contract.
b. Contractor shall indemnify, defend and hold harmless CITY, ODOT and their officers,
employees and agents 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 this Contract.
c. Commercial General Liability. Contractor shall obtain, at Contractor's expense, and keep
in effect during the term of this Contract, Commercial General Liability Insurance
covering bodily injury and property damage in a form and with coverages that are
satisfactory to ODOT 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 $ 1,000,000 for each job site
or location. Each annual aggregate limit shall not be less than $ 200,000.
d. Automobile Liability. Contractor shall obtain, at Contractor's expense, and keep in effect
during the term of this Contract, Commercial Business Automobile Liability Insurance
covering all owned, non-owned, or hired vehicles. This coverage may be written in
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Agreement No. 24,881
City of Tigard
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 ODOT and CITY and its divisions, officers and employees as
Additional Insured but only with respect to the Contractor's activities to be performed
under this 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 ODOT and CITY.
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 this
Contract.
14. CITY certifies, at the time this Agreement is executed, that sufficient funds are available and
authorized for expenditure to finance costs of this Agreement within CITY's current
appropriation or limitation of current biennial budget.
15. 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.
16. CITY 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.
Nothing herein is intended, nor shall it be construed, to create between the PARTIES any
relationship of principal and agent, partnership, joint venture or any similar relationship, and
each PARTY hereby specifically disclaims any such relationship.
17. All employers, including CITY, 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. CITY shall
ensure that each of its subcontractors complies with these requirements.
18. CITY acknowledges and agrees that ODOT, the Oregon Secretary of State's Office, the federal
government, and their duly authorized representatives shall have access to the books,
documents, papers, and records of CITY which are directly pertinent to the specific Agreement
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Agreement No. 24,881
City of Tigard
for the purpose of making audit, examination, excerpts, and transcripts for a period of six (6)
years after final payment (or completion of Project -- if applicable.) Copies of applicable
records shall be made available upon request. Payment for costs of copies is reimbursable by
ODOT.
19. CITY certifies that no right of way acquisition for the state highway is required for this Project.
20. CITY reserves all rights to pursue any claims it may have against ODOT or the State of Oregon.
21. CITY's Project Manager for this Project is Kim McMillan, City of Tigard, 13125 SW Hall
Blvd., Tigard, OR,97223; Phone: 503-718-2642; email: kim@tigard-or, or assigned designee
upon individuals absence.
ODOT OBLIGATIONS
1. ODOT hereby grants CITY, and/or contractors, the right to enter onto and occupy ODOT
right of way upon issuance of ODOT required permits, for the performance of necessary
preliminary engineering, construction, and maintenance of the Project.
2. ODOT's District 2A Project Manager, or designee, shall issue the required permits and, at
Project expense, review and concur with any proposed landscaping activities within the Project
area.
3. ODOT shall, without expense to CITY, take all steps necessary to effectively protect the
adjacent CITY landscape facilities from any damage or incident from ODOT activities within
the Project area. ODOT shall be liable to and shall reimburse CITY for any damage to
CITY's facilities resulting from or attributed to ODOT activities in the Project area.
4. ODOT shall continue to provide ongoing roadway maintenance on 99W from face of curb to
face of curb within Project area identified in Exhibit A.
5. ODOT's Project Manager for this Project is Sam Hunaidi, 6000 SW Raab Rd, Portland, OR
97221; phone: 503-503-731- 8472, email: sam.h.hunaidi @odot.state.or.us, or assigned
designee upon individuals absence.
GENERAL PROVISIONS
1. This Agreement may be terminated by mutual written consent of both PARTIES.
2. ODOT may terminate this Agreement effective upon delivery of written notice to CITY, or at
such later date as may be established by ODOT, under any of the following conditions:
6
Agreement No. 24,881
City of Tigard
a. If CITY fails to provide services called for by this Agreement within the time
specified herein or any extension thereof.
b. If 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 ODOT fails
to correct such failures within ten (10) days or such longer period as ODOT
may authorize.
c. If CITY 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 ODOT is
prohibited from paying for such work from the planned funding source.
3. Any termination of this Agreement shall not prejudice any rights or obligations accrued to the
Parties prior to termination.
4. Both parties shall, to the extent permitted by the Oregon Constitution and the Oregon Tort
Claims Act, indemnify, defend, save, and hold harmless each other, their officers and
employees from any and all claims, suits, and liabilities which may occur in their respective
performance of this Project.
5. Notwithstanding the foregoing defense obligations under the paragraph above, neither party
nor any attorney engaged by either parry shall defend any claim in the name of the other party
or any agency/department/division of such other party, nor purport to act as legal
representative of the other party or any of its agencies/departments/divisions, without the
prior written consent of the legal counsel of such other party. Each party may, at anytime at
its election assume its own defense and settlement in the event that it determines that the
other party is prohibited from defending it, or that other party is not adequately defending it's
interests, or that an important governmental principle is at issue or that*it is in the best
interests of the party to do so. Each party reserves all rights to pursue any claims it may have
against the other if it elects to assume its own defense.
6. If CITY fails to maintain facilities in accordance with the terms of this Agreement, ODOT, 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.
7. 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.
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Agreement No. 24,881
City of Tigard
8. 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 parry 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 ODOT to enforce any provision of this Agreement shall not constitute a
waiver by ODOT of that or any other provision.
The Parties, by execution of this Agreement, hereby acknowledge that each Party has read this
Agreement, understands it, and agrees to be bound by its terms and conditions.
The Oregon Transportation Commission on December 29, 2008, approved Delegation Order No.
2, which authorizes the"Director to approve and execute agreements for day-to-day operations.
Day-to-day operations include those activities required to implement the biennial budget
approved ,by the Legislature, including activities to execute a project in the Statewide
Transportation Improvement Program.
On September 15, 2006, the Director of the Oregon Department of Transportation approved
Subdelegation Order No. 2, Paragraph 2, in which day-to-day authority is delegated to the Region
Managers for their respective Regions, which includes the authority to approve and sign
agreements up to $IS,000 when the work is related to a project included in the Statewide
Transportation Improvement Program, other system plans approved by the Oregon
Transportation Commission such as the Traffic Safety Performance Plan, or in a line item in the
biennial budget approved by the Director.
SIGNATURE PAGE TO FOLLOW
i 8
Agreement No. 24,881
City of Tigard
CITY OF Tigard, by and through el ted STATE OF OREGON, by and through
officials its Department of Transportation
By By
Ma or Re on 1 Manager
Date 7Date 2171( O
0r APPROVAL RECOMMENDED
APPROVED AS TO LEGAL
SUFFICIENCY By
District 2A Manager
C4`S14TY 'tto�y Date
Date ODOT Contact:
Sam Hunaidi
CITY Contact: 6000 SW Raab Rd
Kim McMillan Portland, OR 97221
City of Tigard phone: 503-731- 8472
13125 SW Hall Blvd., email: sam.h.hunaidi@odot.state.or.us
Tigard, OR 97223
Phone: 503-718-2642
email: kim@tigard-or
9
Agreement No. 24,881
City of Tigard
CITY OF Tigard, by and through elected STATE OF OREGON, by and through
officials its Department of Transportation
By By
Mayor Region 1 Manager
Date Date
AP OVAL RECO MENDED
APPROVED AS TO LEGAL
SUFFICIENCY By
Dist r'ct 2A Manager
By
CITY Attorney Date
Date ODOT Contact: v
--Sam-Iitmaids �Z%
CITY Contact: 6000 SW Raab Rd
Kim McMillan Portland, OR 97221
City of Tigard phone: 503 x'3.1--84�2
13125 SW Hall Blvd. email:
Tigard, OR 97223N��
Phone: 503-718-2642
email: kim@tigard-or
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EXHIBT A
Project Location
M C & A No. 24,881
99W Sidewalk Improvement Landscaping
Gaarde Street to Canterbury Lane
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99W SideWilik Improvement Landscaping P1•aject
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