11/27/02

Misc. Contracts & Agreements

No. 20479

 WALKWAY/BIKEWAY PROJECT AGREEMENT

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"; and the CITY OF PORTLAND, acting by and through its Elected Officials, hereinafter referred to as "City."

RECITALS

1.  SE Tacoma Street is a part of the City system under the jurisdiction and control of the City.

2.  By the authority granted in ORS 366.514, funds received from the State Highway Trust Fund are to be expended by the State and the various counties and cities for the establishment of footpaths and bicycle trails. For purposes of Article IX, Section 3a, of the Oregon Constitution, the establishment and maintenance of such footpaths and bicycle trails are for highway, road, and street purposes when constructed within the right of way.

3.  By the authority granted in ORS 190.110, 366.770 and 366.775, State may enter into cooperative agreements with counties and cities 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.

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 and City plan and propose to design and construct landscaped pedestrian refuge islands and curb extensions on SE Tacoma Street from SE 6^th Avenue to SE 21^st Avenue, 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.

2.  City has determined that the actual total cost of the Project is estimated to be $250,118. State shall fund the Project in an amount not to exceed $200,000, using State Highway Funds. City will provide a match in the amount of $50,118. City shall be responsible for any portion of the Project, which is not covered by State funding, including any portion of the Project which exceeds the estimated total cost. In the event that the total Project cost is actually less than the original estimate, the State funds shall be limited to a proportionate share of the original estimated amount, based on a percentage calculated using state share and local match.

3.  The work is to begin upon execution of the agreement by all parties and be completed no later than October 31, 2004. Maintenance responsibilities shall survive any termination of this agreement.

CITY OBLIGATIONS

1.  City shall perform the work described in this agreement.

2.  City shall conduct the necessary field surveys, prepare plans and contract documents; advertise for bid proposals, award all contracts, and supervise construction of the Project. Actual construction of the Project may be accomplished by City forces, by contract, or by any combination of these methods, as City shall elect.

3.  City shall submit a copy of the plans and specifications to State through the State's Bicycle and Pedestrian Program Manager for review and concurrence prior to advertising for a construction contract or prior to construction if City forces will perform the construction work. Concurrence must be received from the State's Bicycle and Pedestrian Program Manager prior to proceeding with the Project. The Project design, signing, and pavement markings shall be in conformance with the current Oregon Bicycle and Pedestrian Plan.

4.  City shall, upon completion of Project, submit to the State's Bicycle and Pedestrian Program Manager an itemized statement of the final actual total cost of the Project.

5.  City represents that this agreement is signed by personnel duly authorized to do so by its City Council.

6.  City shall not enter into any subcontracts for any of the work scheduled under this agreement without obtaining prior written approval.

7.  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 279.312, 279.314, 279.316, 279.320, and 279.555, which hereby are incorporated by reference. Without limiting the generality of the foregoing, City expressly agrees to comply with: (i) Title VI of Civil Rights Act of 1964; (ii) Section V of the Rehabilitation Act of 1973; (iii) the Americans with Disabilities Act of 1990 and ORS 659.425; (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.

8.  Contractor shall furnish to the City, Comprehensive or Commercial General Liability Insurance covering bodily injury and property damage.

9. To the extent permitted by the Oregon Constitution and the Oregon Tort Claims Act, city, its Contractors, and their Subcontractors shall indemnify, defend, save, and hold harmless the State of Oregon, the Oregon Transportation Commission and its members, the Oregon Department of Transportation, their officers, agents, and employees from and against any and all claims, suits, actions, losses, damages, costs, expenses, and liabilities of any nature whatsoever resulting from, arising out of, or relating to the activities of City or its officers, employees, subcontractors, or agents under this agreement.

10.  City shall be responsible for all costs not covered by State funding. State funding is limited to $200,000.

11.  City shall be 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 system contributions, workers compensation, unemployment taxes, and state and federal withholdings.

12.  City shall, upon completion of Project, maintain the Project at its own cost and expense, and in a manner satisfactory to State.

STATE OBLIGATIONS

1.  State's Bicycle and Pedestrian Program shall review and must concur in the plans prepared by City before the Project is advertised for a construction contract or before construction begins if City forces shall perform the work. State's Bicycle and Pedestrian Program office shall process all billings submitted by City.

2.  Upon receipt of notification that the City is prepared to proceed with the development of Project, State shall deposit with City the sum of $100,000, such amount being equal to 50 percent of the State’s share of the estimated Project costs. Upon completion of Project, inspection and approval by State staff, and receipt from City of an itemized statement of the actual total cost of the Project, State shall deposit with City a final payment, the sum of $100,000, such amount being equal to 50 percent of the State’s share of the estimated Project costs. When added to the initial deposit, the final deposit will equal the State's share of the originally estimated costs ($250,118). Should final Project costs exceed the original estimate, extra costs shall be borne by City; the maximum amount of State reimbursement is $200,000. If final Project costs are less than original estimate, State shall deposit with City a final payment in an amount which, when added to the initial deposit, would equal the State's proportionate share of the originally estimated costs, based on a percentage calculated using state share and local match.

3.  In the event this agreement is terminated for any reason, City shall provide an itemized statement of the costs and expenses prior to date of termination. State shall reimburse City for its proportional share of these expenses. If any funds are remaining from the advance deposit, they shall be refunded to State.

4.  State certifies, at the time this agreement is executed, that sufficient funds are available and authorized for expenditure to finance costs of this agreement within State's current appropriation or limitation of current biennial budget.

GENERAL PROVISIONS

1.  City, its contractor, its subcontractors, if any, and all employers working under this Agreement are subject employers under the Oregon Workers' Compensation Law and shall comply with ORS 656.017, which requires them to provide workers' compensation coverage for all their subject workers, unless such employers are exempt under ORS 656.126. City shall ensure that each of its contractors complies with these requirements.

2.  This agreement may be terminated by mutual consent of both parties.

3.  State may terminate this agreement effective upon delivery of written notice to City, or at such later date as may be established by State, under any of the following conditions:

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 State fails to correct such failures within 10 days or such longer period as State may authorize.

c.  If State fails to receive funding, appropriations, limitations, or other expenditure authority at levels sufficient to pay for the work provided in this agreement.

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 if State is prohibited from paying for such work from the planned funding sources.

Any termination of this agreement shall not prejudice any rights or obligations accrued to the parties prior to termination.

4.  If City fails to maintain the facility 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.

5.  State, the Secretary of State's Office of the State of Oregon, 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 for the purpose of making audit, examination, excerpts, and transcripts for a period of three years after final payment. Copies of applicable records shall be made available upon request. Payment for costs of copies is reimbursable by State.

6.  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 State 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 a party to enforce any provision of this agreement shall not constitute a waiver by a party of that or any other provision.

IN WITNESS WHEREOF, the parties hereto have set their hands and affixed their seals as of the day and year hereinafter written.

The Oregon Transportation Commission approved this Project on February 1, 2000 as part of the Fiscal Year 2002-2003 Local Assistance Bicycle and Pedestrian Program. The funds are included in the Statewide Programs Section of the 2000-2003 Statewide Transportation Improvement Program (STIP).

The Oregon Transportation Commission on January 16, 2002, approved Delegation Order No. 2, which authorizes the Director to approve and execute agreements for day-to-day operations when the work is related to a project included in the Statewide Transportation Improvement Program or a line item in the biennial budget approved by the commission.

SIGNATURE PAGE TO FOLLOW

On January 31, 2002, the Director of the Oregon Department of Transportation approved subdelegation order No. 2, in which the Director grants authority to the Executive Deputy Director for Highways, Executive Deputy Director for Central Services, and the Chief of Staff to approve and execute over $75,000 when the work is related to a project included in the Statewide Transportation Improvement Program, other system plans approved by the Commission, or in a line item in the approved biennial budget.