Misc. Contracts & Agreements

No. 19,420

AMENDMENT No. 2

2001 OREGON TRANSPORTATION INVESTMENT ACT AGREEMENT

East Columbia Blvd. – Lombard St. Connector

US 30 Bypass

The State of Oregon, acting by and through its Department of Transportation (ODOT), and City of Portland, acting by and through its Elected Officials (Agency), collectively referred to as “Parties”, entered into Local Agency Agreement No.19,420 on June 4, 2003 and Amendment No. 1 on October 5, 2005. Said Agreement was to cover the roadway improvements on NE Columbia Blvd and NE Lombard Street (Killingsworth) from approximately NE 82^nd Ave to the I-205 Interchange, hereinafter referred to as “Project.”

It has now been determined by ODOT and Agency that the agreement referenced above, although remaining in full force and effect, shall be amended to increase funding authorization update standard language. Therefore the above mentioned Agreement shall be amended as follows:

Revised Exhibit A shall be replaced in its entirety with Revised Exhibit A-1.

Page 2, Amendment No. 1, Terms of Agreement Paragraph 1, which reads:

“1.  Parties shall make roadway modernization improvements on NE Columbia Boulevard and NE Lombard Street (Killingsworth) from approximately NE 82^nd Avenue to the I-205 Interchange, hereinafter referred to as “Project”. The section of NE Lombard Street (Killingsworth) within the Project limits is a state highway under the jurisdiction and control of the Oregon Transportation Commission. NE Columbia Blvd. is a part of the city street system under the jurisdiction and control of the Agency. A Project description and budget are shown on the Revised Exhibit “A”, and a sketch map showing the location and approximate limits of the Project is shown on Exhibit “B”, attached hereto and by this reference made a part hereof.”

Shall be amended to read:

“1.  Parties shall make roadway modernization improvements on NE Columbia Boulevard and NE Lombard Street (Killingsworth) from approximately NE 82^nd Avenue to the I-205 Interchange, hereinafter referred to as “Project”. The section of NE Lombard Street (Killingsworth) within the Project limits is a state highway under the jurisdiction and control of the Oregon Transportation Commission. NE Columbia Blvd. is a part of the city street system under the jurisdiction and control of the Agency. A Project description and budget are shown on the Revised Exhibit “A-1”, and a sketch map showing the location and approximate limits of the Project is shown on Exhibit “B”, attached hereto and by this reference made a part hereof.”

Key #08838

Page 2 & 3, Amendment No. 1, Terms of Agreement Paragraph 2, which reads:

“2. The total estimated cost of the Project is $26,904,177. The budget is shown on Revised Exhibit A.”

Shall be amended to read:

“2. The total estimated cost of the Project is $30,404,177. The budget is shown on Revised Exhibit A-1.”

Page 3, Amendment No. 1, Terms of Agreement Paragraph 3, which reads:

“3. 2001 OTIA Program funds shall be limited to $20,545,450. Agency shall be responsible for Agency’s contribution of $6,358,727, and shall be required to pay for costs found to be nonparticipating or constitutionally ineligible for this Project.”

Shall be amended to read:

“3. 2001 OTIA Program funds shall be limited to $24,045,450. Agency shall be responsible for Agency’s contribution of $6,358,727, and shall be required to pay for costs found to be nonparticipating or constitutionally ineligible for this Project.”

Page 3 & 4, Amendment No. 1, Terms of Agreement Paragraph 4 which reads:

“4.    Agency will initiate a discussion with ODOT regarding the budget any time a significant change occurs, including at a minimum, discussions when the following events occur:

a.) at the completion of the Level 2 Environmental Site Assessment

b.) when the right-of-way process has completed the final appraisals and a relocation plan

c.) when the type, size and location of the Project has been determined

d.) when the railroad work order is completed; and

e.) prior to award of contract.

ODOT and Agency will meet at the times listed above to determine if the Project is still on budget. If it is found that there will be significant cost over-runs ODOT shall be responsible for 32 percent of the estimated cost over-runs up to $780,200. Agency shall be responsible for 68 percent of said cost over-runs up to $1,660,000 in addition to their required obligations stated above.

If the total for the contract over-runs will be more than $2,440,200 then Agency and ODOT shall negotiate the excess costs and the agreed upon amount of ODOT’s share shall be incorporated into this agreement by a written amendment. If after negotiation, and agreement can not be reached, Agency shall be responsible for all cost over-runs above the $2,440,200.

Shall be amended to read:

“4.    Agency will initiate a discussion with ODOT regarding the budget any time a significant change occurs, including at a minimum, discussions when the following events occur:

a.) at the completion of the Level 2 Environmental Site Assessment

b.) when the right-of-way process has completed the final appraisals and a relocation plan

c.) when the type, size and location of the Project has been determined

d.) when the railroad work order is completed; and

e.) prior to award of contract.

ODOT and Agency will meet at the times listed above to determine if the Project is still on budget. If it is found that there will be significant cost over-runs ODOT shall be responsible for 72 percent of the estimated cost over-runs up to $4,280,200. Agency shall be responsible for 28 percent of said cost over-runs up to $1,660,000 in addition to their required obligations stated above.

If the total for the contract over-runs will be more than $5,940,200 then Agency and ODOT shall negotiate the excess costs and the agreed upon amount of ODOT’s share shall be incorporated into this agreement by a written amendment. If after negotiation, and agreement can not be reached, Agency shall be responsible for all cost over-runs above the $5,940,200.

Page 6 & 7, Amendment No. 1, Agency Obligations, Paragraph 9, which reads:

“9.  Agency shall be responsible for any and all costs of Project which are not covered by OTIA funds, including costs of the Project when the maximum amount of OTIA funds, and if necessary, the $780,200 of ODOT funds, obligated under this Agreement have been expended.”

Shall be amended to read:

“9.  Agency shall be responsible for any and all costs of Project which are not covered by OTIA funds, including costs of the Project when the maximum amount of OTIA funds, and if necessary, the $4,280,200 of ODOT funds, obligated under this Agreement have been expended.”

Page 8, Amendment No. 1, Agency Obligations, Paragraph 17a, which reads;

“17.a.  Agency 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 this Project.

Shall be amended to read;

“17a.  Agency 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, and the Oregon Department of Transportation and its officers and employees, from all claims, suits or actions of any nature arising out of activities of Agency, its consultant, its contractor, its officers, subcontractors, agents, or employees under this agreement.”

Page 9, Amendment No. 1, Agency Obligations Paragraph 23, which reads:

“23.  Agency agrees to comply with the conditions for Project approval adopted by the Oregon Transportation Commission, as set out in the Revised Exhibit A, Special Conditions, which is attached and made part of this Agreement.”

Shall be amended to read:

“23.  Agency agrees to comply with the conditions for Project approval adopted by the Oregon Transportation Commission, as set out in the Revised Exhibit A-1, Special Conditions, which is attached and made part of this Agreement.”

Page 9, Amendment No. 1, ODOT Obligations Paragraph 1 a., which reads:

“a. ODOT shall reimburse Agency 76.4 percent of eligible, actual costs incurred up to the maximum amount of OTIA funds committed for the Project specified in Terms of Agreement, Paragraph 3, provided that Agency is meeting the Project milestones set out in Agency Obligations, Paragraph 6. a. Under no conditions shall ODOT’s total obligation exceed $20,545,450 in OTIA funds, including all expenses unless negotiated for and agreed to by the parties per Terms of Agreement, Paragraph 3.”

Shall be amended to read:

“a. ODOT shall reimburse Agency 79.1 percent of eligible, actual costs incurred up to the maximum amount of OTIA funds committed for the Project specified in Terms of Agreement, Paragraph 3, provided that Agency is meeting the Project milestones set out in Agency Obligations, Paragraph 6. a. Under no conditions shall ODOT’s total obligation exceed $24,045,450 in OTIA funds, including all expenses unless negotiated for and agreed to by the parties per Terms of Agreement, Paragraph 3.”

Page 10, Amendment No. 1, General Provisions Paragraph 3 which reads:

“3.  In the event that during the preliminary engineering stage, or at any time prior to issuance of notice to proceed for the construction portion of the Project, the estimated Project cost exceeds $26,904,177, Agency may terminate this Agreement. If Agency terminates this Agreement for the reasons described herein, Agency shall reimburse ODOT for all Oregon Transportation Investment Act funds expended. If Agency fails to reimburse ODOT, ODOT may withhold Agency's proportional share of State Highway Fund distribution necessary to reimburse ODOT for costs incurred."

Shall be amended to read:

“3.  In the event that during the preliminary engineering stage, or at any time prior to issuance of notice to proceed for the construction portion of the Project, the estimated Project cost exceeds $30,404,177, Agency may terminate this Agreement. If Agency terminates this Agreement for the reasons described herein, Agency shall reimburse ODOT for all Oregon Transportation Investment Act funds expended. If Agency fails to reimburse ODOT, ODOT may withhold Agency's proportional share of State Highway Fund distribution necessary to reimburse ODOT for costs incurred."

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

The Oregon Transportation Commission approved this Project on January 16, 2002.

The Oregon Transportation Commission on June 18, 2003, 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.

On November 10, 2004, the Director of the Oregon Department of Transportation approved Subdelegation Order No. 2, in which the Director delegates authority to the Deputy Director, Highways, and the Deputy Director for OTIA to approve and execute agreements over $75,000 when the work is related to a project included in the Statewide Transportation Improvement Program.

APPROVAL RECOMMENDED    STATE OF OREGON, by and through

its Department of Transportation

By_________________________  By____________________________

Region 1 Manager   Deputy Director, Highways

Date________________________  Date__________________________

By_________________________

Tech Services Manager/Chief Engr

 CITY OF PORTLAND, by and through

APPROVED AS TO LEGAL  its Elected Officials

SUFFICIENCY  

 By____________________________

By_________________________   Mayor

Assistant Attorney General

 Date__________________________

Date _______________________ By____________________________

    Auditor

Date__________________________

APPROVED AS TO LEGAL  

SUFFICIENCY        RETURN AGREEMENT TO AGENCY:

 Contact:  Rob Barnard

By__________________________  

Agency Attorney      Address:  City of Portland, Oregon

Office of Transportation

1120 SW 5th Ave, Suite 800

Date ________________________      Portland, OR 97204      
   

REVISED EXHIBIT A-1

PROJECT DESCRIPTION

CITY OF PORTLAND OFFICE OF TRANSPORTATION

EAST COLUMBIA BOULEVARD TO LOMBARD STREET CONNECTOR

Develop a new wider underpass and at-grade intersection at a location further from the I-205 Interchange. The Columbia Blvd. approach to the intersection will be wider to increase storage and add additional left-turn lanes.

SPECIAL CONDITIONS

The Oregon Transportation Commission approved Projects for funding under OTIA subject to certain conditions:

1.  City of Portland, Port of Portland and ODOT shall jointly develop an access management plan for the project. The City of Portland shall adopt the access management plan as part of a development agreement between the City of Portland and ODOT as provided in ORS 94.504. In addition to the requirements of ORS 94.504, the development agreement shall include the following elements:

a.  An automatic renewal of the agreement unless the City of Portland takes a positive action to terminate the agreement.

b.  If the agreement is to be terminated that the City of Portland give notice to ODOT in advance of a public hearing on the matter and that the public hearing be held prior to the expiration of the agreement.

c.  Changes or termination of the agreement in advance of expiration shall require formal affirmative action by the Oregon Transportation Commission and the City of Portland.

d.  The agreement can expire if the City of Portland includes the access management plan in its Transportation System Plan.