City Auditor - City Recorder - Council Ordinance - 177571 Trimet North Interstate Light Rail project amend contract 51409 amendment

DESIGN AND CONSTRUCTION MANAGEMENT SERVICES AGREEMENT

First Amendment

THIS Amendment is made and entered into as of the __________ day of ____________, 2003, by and between the Tri-County Metropolitan Transportation District of Oregon (TriMet) and the City of Portland (City).

RECITALS

A. In November 2000, the parties entered into a Design and Construction Management Services Agreement (“Agreement”) to document each party’s understandings and agreements relating to the design and construction phases of the full Interstate alignment commonly referred to as the North Interstate MAX Light Rail Project (“Interstate MAX Project”).

B. TriMet has completed design activities and is midway through construction of the Project. A number of modifications must be made to the Agreement to clarify construction work elements, add additional City services and update the budget information.

C. The scope of Bureau of Environmental Services (BES) services to be provided in conjunction with this Agreement is greater than anticipated and certain BES costs were not included in the original agreement.

D. TriMet and the Bureau of Water Works executed a Memorandum of Understanding (MOU) related to the relocation of waterline facilities. This MOU must now be added to the Agreement.

E. The City has planned independently to construct an overcrossing structure at North Tillamook and North Interstate Avenue to provide truck access free from Union Pacific Railroad train blockage in the Lower Albina Business District (“Lower Albina Overcrossing Project”).

F. The parties believe it is in the best interest of both projects to incorporate the Lower Albina Overcrossing Project into the Interstate MAX Project (the joint projects shall hereafter be referred to as the “Project”), but only in accordance with the terms of this First Amendment (the “First Amendment”).

G. The City has requested that TriMet permit the installation of fiber optic cable into an innerduct of the conduit system constructed by TriMet in the Project, along the right-of-way. TriMet is willing to allow this fiber optic installation as a Betterment on the Project, but only in accordance with this First Amendment.

NOW THEREFORE, in consideration of the above recitals and mutual promises contained herein, the parties agree as follows to these changes to the Agreement.

ARTICLE III – TRIMET OBLIGATIONS

Add the following Sections:

K. TriMet’s Resident Engineer for LS 10A/B, under the direction of TriMet’s Project Implementation Director/Construction Manager and the City’s Project Manager, shall create a staffing plan for the LS 10 A/B construction contract. Staffing for key positions shall be jointly agreed to by the City Engineer and TriMet’s Capital Projects and Facilities Executive Director. These key positions are:

• Field Engineers for the LS 10A/B Contract

• City Project Manager

• Chief Inspector and staff Inspector

• Structural Engineer

TriMet’s Project Implementation Director/Construction Manager and the City Project Manager shall assemble key members of the LS 10 A/B and C construction management teams, including assigned TriMet staff and consultants, and City staff to implement procedures for coordination between the City and TriMet with the intended goal of communication with the contractor whenever possible with one common voice.

L. TriMet will prepare bid and construction contract documents, bid the work, manage and enforce provisions of the construction contracts, make payments, and perform other duties including community relations functions.

M. It is understood by both the City and TriMet that a project of this size and complexity will raise issues requiring speedy resolution. The parties will establish a process for citizens, affected City Bureaus and TriMet to resolve issues that may arise, as necessary.

N. Changes to the Work.

1. Because of the complexity of the work involved in the Project and the restricted amount of time available for review of the plans and specifications by the City, the City and TriMet recognize and acknowledge that there may be a significant number of changes required to the plans and specifications during construction.

2. TriMet and the City agree to timely responses as appropriate and required to keep the work progressing.

3. Changes directed by the City. Subject to the terms of this Agreement, TriMet acknowledges that the City, as permitting authority, can order changes to the work being done in the public right-of-way as it considers necessary, and within the general scope and limits of the LS 10 A/B, 10 C, sewer and water construction contracts. In the event that TriMet disagrees with the City’s change directive, the issue will be resolved through the Issue Resolution process described above.

4. Changes proposed by TriMet. All changes proposed by TriMet, or others, which would impact work authorized by the Permit or by this Agreement will be submitted to the City Project Manager for review and approval. The City Project Manager will coordinate any necessary reviews by City Bureaus, citizen groups, or other interested parties, as appropriate, and return a decision to TriMet as required to meet contract milestones or keep the work progressing.

5. TriMet will handle any claims by the contractor for change orders and will not look to the City for reimbursement or compensation for any such changes except when those changes are agreed to be betterments. Should changes result in added work by the City, the City Project Manager shall submit an estimate of added costs to TriMet. TriMet shall review the estimate and negotiate a modification to this Agreement for added work.

TriMet shall bid, award contracts, and provide for construction of the Project. After review and comment by the City Project Manager, TriMet shall draft, issue, advertise, receive and evaluate all bid documents and award contracts to be administered by the Project Team.

O. TriMet shall provide the following services through its own forces or through subcontracts:

1. Civil Design Consultants

2. System Design Consultants

3. Project Controls Consultants

4. Construction Consultants and Inspectors

5. Materials Testing and Survey Services

P. TriMet shall provide the following support services:

1. Review, along with others of the construction team, the shop drawings and other contractor submittals.

2. Certify substantial and final completion of the LRT elements of the work pursuant to construction contract (such as trackwork and stations).

3. Review and approve monthly progress payments.

4. Review and recommend approval of Change Requests and Change Orders in accordance with contract management procedures and this Agreement.

5. Coordinate with City’s Project Manager regarding work activities as they impact adjacent properties and businesses.

6. Provide inspection, along with others from the project team, for the work provided below.

7. Accept the completed work for maintenance in accordance with maintenance agreement(s) to be approved by TriMet and the City and warranty provisions of construction contracts.

8. Construct any betterments to the Project or associated work (as defined below) for which the City has agreed to reimburse TriMet.

Q. TriMet shall assign the following personnel to the Project:

1. Construction Manager

2. Resident Engineer

3. Assistant Resident Engineer

4. Inspectors as TriMet may desire, as provided in the Inspection section of this Agreement

5. Office Engineer

6. Community Affairs Specialists for community relations work, media releases, newsletters, and other special events

7. Design support staff during construction

R. Provide office space described below:

Provide office space, office furnishings, parking spaces for City staff vehicles, support supplies and equipment for the City staff assigned to administer the permits and inspect the work related to LS 10A/B construction. The City staff and TriMet staff shall be co-located in an office adjacent to the project to facilitate close cooperation and responsiveness.

S. Provide construction and permanent easements for all TriMet, private and City facilities, outside of City right-of-way, constructed under the LS 10 A/B, LS 10 C, water, and sewer contracts. Permanent easements for City facilities shall use standard City form, terms, and conditions and shall be reviewed and approved by the appropriate City Bureau.

ARTICLE IV – CITY OBLIGATIONS

Modify the following Section:

I. Replace sentence with: “City shall make available during design and construction the persons identified in the “I-MAX Staffing Amend 1” plan, attached as updated Exhibit B.

Add the following Sections:

K. The City shall provide the following services through its own forces at TriMet’s expense:

1. Office of Transportation Bureau of Maintenance will perform signal modifications and signal activation and install permanent parking/truck loading signs upon project completion.

2. Office of Transportation will provide, install and program 30 permanent traffic signal controllers, including a special controller cabinet at the intersection of Multnomah and Interstate Avenues.

3. Office of Transportation will prepare traffic signal asbuilts upon project completion.

4. Office of Transportation will install, maintain, and remove temporary street lights. Removal will take place upon activation of permanent street lighting.

5. Office of Transportation will provide fiber optic connections to the Smithson field office.

6. Office of Transportation will pay for building permits for renovation to the Smithson building to create the project field office, in order to expedite the project’s tight construction schedule.

7. Office of Transportation Bureau of Maintenance will perform potholing at Greeley to locale the limits of the freeway column footings.

8. During construction, Office of Transportation Bureau of Maintenance will be required to turn traffic signals on and off as work at intersections is performed.

9. Office of Transportation will work with TriMet to re-route the regional through bike route from Interstate Ave to Denver at Willamette Boulevard, and improve east-west bike connections to the Killingsworth, Portland Boulevard, and Lombard stations. See Exhibit F, incorporated herein by this reference.

10. The City will permanently relocate the Fire Bureau’s aerial cable, suspended from PGE poles, to the newly relocated poles, and will relocate its crossing of Interstate Avenue from Lombard to Buffalo. See Exhibit G, incorporated herein by this reference.

11. Bureau of Water Works will provide permanent and temporary connections to water system, install valves and hydrants, service and vault installations and provide verifications of existing facilities (potholing) as indicated in the construction contract documents.

12. The City will perform other work as provided under “PDOT Staff Hour Changes” in Exhibit H, incorporated herein by this reference.

13. All work performed by City Bureaus under this section shall comply with the terms and conditions of Noise Variance(s) obtained by TriMet and/or TriMet’s contractor for the Project.

L. The City shall provide the following support services:

1. Review, along with other members of the construction team, the shop drawings and other contractor submittals.

2. Certify final completion and acceptance of work pursuant to City permit(s).

3. Review and approve the portions of monthly progress payments related to work which is to be reimbursed by the City.

4. Review and approve changes to the work covered under the Permit in accordance with this Agreement.

5. Coordinate with the Construction Manager regarding work activities as they impact adjacent properties and businesses.

6. Provide inspection, along with others from the construction team, of the work, as provided below.

7. Accept the completed Work from TriMet’s contractors for maintenance consistent with maintenance agreement(s) to be approved by TriMet and the City, and warranty provisions of the Permit.

8. Pay for Betterments or other improvements which the City desires incorporated into the Project.

As of the date of this modification, the City has identified the Betterments as the Lower Albina Overcrossing Project and installation of conduit/connections for City fiber optic line. The City through its respective bureaus requesting Betterments (i.e. PDOT) shall pay the actual cost for the Betterments described above. TriMet shall pay the contractor directly for such Betterments, and will bill the City, as applicable, for such progress payments on a monthly basis.

9. Provide the Construction Manager a quarterly financial cost report identifying the City costs incurred under this Agreement during the quarter and for which the City expects payment under this Agreement. The report shall also reflect any payments made to the City under this Agreement.

M. Assign the following personnel to the project:

1. The City Project Manager

2. Assistant City Project Managers

3. Chief Inspector

4. Staff Inspector

5. Structural Engineer

6. Bureau Project Coordinators for BWW and BES

7. Specialty inspectors for street lighting, signals, water and sewers as needed

N. Inspection

1. The parties intend to conduct a joint inspection program. If so conducted, the parties shall develop procedures relating to completion of daily inspection logs or reports, distribution of such reports, and the recommendation of action based on such logs or reports.

2. Under the joint inspection program, both parties shall approve the assignment of joint inspectors to the job. Inspectors assigned to the job shall remain employees of their respective agency or company.

3. Both parties may assign specialty inspectors to the job. Specialty inspectors shall coordinate their inspections through the Chief Inspector, but will continue to report to their respective agency.

ARTICLE V – CITY SERVICES TO BE PROVIDED TO TRIMET

Modify the following Sections:

D.(5) Insert …2000, “… and the updated BES MOU Cost Sharing agreement” attached as Exhibit D.

E.(8) Insert …2000, “and the updated BWW MOU cost sharing agreement” attached as Exhibit E.

Replace Section I (2) with the following:

I. Compensation

(2) Estimated Maximum costs for City Services are provided in Exhibit I the Summary Sheet, incorporated herein by this reference. The parties agree to pay the costs as provided in Exhibit H.

ARTICLE VIII – GENERAL PROVISIONS

Add to Section K. Documents:

All items relating to track and track support related materials, stations and station finishing, electrification, signals, and communication installed in the public right-of-way shall be the property of TriMet. TriMet shall retain ownership of the originals of any data, documents, plans, specifications produced as part of the Project and TriMet shall provide no more than two (2) reproducible copies of any such documents, at no cost, when requested by the City.

Add the following Articles:

ARTICLE IX - LOWER ALBINA OVERCROSSING PROJECT

A. Project Incorporation. The parties agree to the incorporation of the Lower Albina Overcrossing Project into the Interstate MAX Project. The scope of the Lower Albina Overcrossing Project is shown in the City’s final approved and permitted plans, dated January, 2001.

1. Project Costs. Funding for the Overcrossing Project will be in accordance with the budget attached hereto as Exhibit J, which is fully incorporated by this reference. The City agrees to bear all costs and expenses for the Lower Albina Overcrossing Project, subject to TriMet’s contribution obligation as set forth in Exhibit J. The City will bear the cost of any and all change orders on the Lower Albina Overcrossing Project.

B. Tucker Building and Indemnification. As part of the Overcrossing Project, the City purchased the building commonly known as the Tucker Building. The City has conducted extensive environmental testing to ascertain the presence of hazardous substances at and around the Tucker Building. Construction of the Overcrossing Project requires demolition of the Tucker Building. The City hereby agrees to indemnify and defend TriMet, its agents, employees, officers, and contractors, for any and all claims related to the demolition or based on the presence of hazardous substances (as defined under both Federal and Oregon law) at and around the Tucker Building site.

C. Owner Controlled Insurance. TriMet has initiated an Owner Controlled Insurance Program for the Interstate MAX Project (“OCIP”). The Overcrossing Project shall be covered by OCIP as follows:

1. Policies of Insurance. The OCIP program consists of the following policies of insurance: General and Excess Liability, Railroad Protection Liability, Builder’s Risk Liability, and Workers’ Compensation. TriMet agrees to incorporate the Overcrossing Project into the OCIP Program as of the start of construction of the Overcrossing Project. The City will be responsible for (1) all incremental increases in the insurance policy premiums related to the Overcrossing Project; (2) all claim costs under the deductible for General and Excess Liability, Builder’s Risk and Railroad Protection Liability; (3) all costs associated with Workers’ Compensation claims; and (4) all pre-construction survey costs associated with structures and facilities at risk as a result of the Overcrossing Project.

2. Reimbursement. The City will reimburse TriMet for the actual cost of the insurance premiums associated with the Overcrossing Project based on the underwriter’s rating criteria. Provided, however, that, for Workers Compensation premiums, TriMet will estimate the premium based on payroll being 20% of the Lower Albina Bridge cost. The actual percentage of payroll to contract value will be calculated at the construction contract closeout. All premiums will be reconciled at the construction contract closeout. All actual claim costs (under the deductible and for workers compensation) will be billed as they are incurred. The City’s obligation under OCIP will survive completion of the Overcrossing Project.

D. Project Management. TriMet designates Leah Robbins as its Overcrossing Project Manager and the City designates Karen Rabiner as its Overcrossing Project Manager (collectively, “Lower Albina Project Managers”). The Lower Albina Project Managers will be responsible for coordinating all aspects of their respective work scopes for the Overcrossing Project and all the respective employees, consultants and contractors assigned to the Overcrossing Project. The Overcrossing Project Managers shall ensure that the Overcrossing Project and tasks related thereto are completed expeditiously, economically, and shall be the contact persons through whom TriMet and the City officially communicate, and shall have the authority to make decisions and resolve disputes relating to the Overcrossing Project. In the event that a disagreement or dispute occurs between the Project Managers, they shall refer it to the Project Directors for resolution.

E. Change Orders. The City’s Overcrossing Project Manager will be consulted on all Overcrossing Project change orders.

ARTICLE X – FIBER OPTICS

A. Installation of Fiber Optics. The parties have agreed that the City will be permitted to install fiber optic cable into an innerduct of the conduit system constructed by TriMet in the Project, along the right-of-way, as a Project Betterment.

B. In order to facilitate the parties’ agreement with respect to installation of such fiber optic cable, the parties shall execute an “INTERGOVERNMENTAL AGREEMENT BETWEEN TRIMET AND THE CITY OF PORTLAND FOR FIBER OPTIC CABLE INSTALLATION AND MAINTENANCE”, substantially in the form annexed hereto as Exhibit K.

WHEREFORE, the parties have agreed to the foregoing on the dates noted adjacent to their respective signatures.

City of Portland Tri-County Metropolitan

Transportation District of Oregon

By: ___________________________ By: ______________________________

Commissioner of Public Utilities General Manager

Name:_________________________ Name:____________________________

Dated: _________________________ Dated: ____________________________

By: ___________________________

City Auditor

Dated: _________________________

Approved as to form:

_______________________________ ________________________________

City Attorney TriMet, Assistant General Counsel

EXHIBIT B

City Staffing Plan First Amend

EXHIBIT D

Amendment to BES MOU

EXHIBIT E

Amendment to BWW MOU

EXHIBIT F

AGREEMENT Bike Improvements

EXHIBIT G

Fire Bureau Cable Memo

Exhibit H

Adjustments to Scope

Exhibit I

Summary of Costs

Exhibit J

Lower Albina Overcrossing

Exhibit K

Fiber Optics IGA