LOCAL AGENCY AGREEMENT

HIGH PRIORITY PROJECT

SW Gibbs Street Pedestrian Bridge over I - 5

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 "Agency", collectively referred to as the “Parties”.

RECITALS

1. Interstate 5 (I-5) is a part of the state highway system under the jurisdiction and control of the Oregon Transportation Commission. SW Gibbs Street, SW Kelly Ave, SW Moody Ave, Hood Ave and SW Macadam Ave are a part of the city street system under the jurisdiction and control of Agency.

2. By the authority granted in ORS 190.110, 366.572, and 366.576, State may enter into cooperative agreements with the 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. Under provisions of the Safe, Accountable, Flexible, Efficient, Transportation Equity Act: A Legacy for Users (SAFETEA-LU), which provides authorization for Federal-aid highways, highway safety programs, and transit programs, and for other purposes; State is required to set aside federal funds over the five (5) years of SAFETEA-LU for projects to address High Priority and Transportation Improvement project activities.

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 said provisions, Agency agrees to construct a pedestrian bridge across I-5 and SW Macadam Ave. The bridge landing and access on the West side is at SW Gibbs Street and SW Kelly Ave and on the East between SW Moody Ave and SW Macadam Ave in alignment with SW Gibbs Street, hereinafter referred to as "Project". The structure will be ADA accessible. 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. The Project shall be conducted as a part of the High Priority Program (HPP) authorized under SAFETEA-LU. The total Project cost is estimated at $12,260,000, which is subject to change. The HPP Funds available for the Project are estimated at $11,000,000 with Agency providing the match for the federal funds and any non-participating costs, including all costs in excess of the available federal funds. The federal pro-rate funding for the Project is 89.73 percent and provided federal funds will be subject to annual obligation limitations and possible rescissions. The funds shall be used for all phases of the Project.

3. State considers Agency a sub-recipient of the federal funds under this Agreement.

4. The Federal Bill Numbers and Project Description are as shown in the table below:

5. The federal funding for this Project is contingent upon approval by the FHWA. Any work performed prior to acceptance by FHWA will be considered nonparticipating and paid for at Agency expense. The Catalog of Federal Domestic Assistance (CFDA) number for this Project is 20.205.

6. The term of this Agreement shall begin on the date all required signatures are obtained and shall terminate on completion of the Project and final payment or ten (10) calendar years following the date all required signatures are obtained, whichever is sooner. The attached Special Provisions may contain additional termination conditions.

7. This Agreement may be terminated by mutual written consent of both Parties.

8. 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:

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

9. Any termination of this Agreement shall not prejudice any rights or obligations accrued to the Parties prior to termination.

10. The Special and Standard Provisions attached hereto, marked Attachments 1 and 2, respectively, are by this reference made a part hereof. The Standard Provisions apply to all federal-aid projects and may be modified only by the Special Provisions. The Parties hereto mutually agree to the terms and conditions set forth in Attachments 1 and 2. In the event of a conflict, this Agreement shall control over the attachments, and Attachment 1 shall control over Attachment 2.

11. Agency, as a recipient of federal funds, pursuant to this Agreement with the State, shall assume sole liability for Agency’s breach of any federal statutes, rules, program requirements and grant provisions applicable to the federal funds, and shall, upon Agency’s breach of any such conditions that requires the State to return funds to the Federal Highway Administration, hold harmless and indemnify the State for an amount equal to the funds received under this Agreement; or if legal limitations apply to the indemnification ability of Agency, the indemnification amount shall be the maximum amount of funds available for expenditure, including any available contingency funds or other available non-appropriated funds, up to the amount received under this Agreement.

12. Agency shall adopt an ordinance to enter into and execute this Agreement during a duly authorized session of its City Council.

13. 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.

14. 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 State to enforce any provision of this Agreement shall not constitute a waiver by State of that or any other provision.

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

This Project was amended into the 2006-2009 Statewide Transportation Improvement Program, (Key #14065) that was approved by the Oregon Transportation Commission on April 5, 2007.

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 September 15, 2006, the Director of the Oregon Department of Transportation approved Subdelegation Order No. 2, Paragraph 1, in which authority is delegated to the Deputy Director, Highways; Deputy Director, Central Services and the Chief of Staff, to approve and sign agreements over $75,000 when the work is related to a project included in the Statewide Transportation Improvement Program approved by the Director.

ATTACHMENT NO. 1 TO AGREEMENT # 24,108

SPECIAL PROVISIONS

1.  Agency, or its consultant, shall conduct the necessary preliminary engineering and design work required to produce final plans, specifications and cost estimates; purchase all necessary right of way; obtain all required permits; arrange for all utility relocations or reconstruction; perform all construction engineering, including all required materials testing and quality documentation; and prepare necessary documentation to allow State to make all contractor payments.

2.  In the event that Agency elects to engage the services of a personal services consultant to perform any work covered under this Agreement, Agency and Consultant shall enter into a Personal Services Contract approved by State’s Office of Procurement Manager or designee (Salem). Said contract must be reviewed and approved by the Office of Procurement Manager or designee prior to beginning any work. This review includes, but is not limited to the Request for Proposal, Statement of Work, advertisement and all contract documents. This review and approval is required to ensure federal reimbursement.

3.  State may make available Region 1’s On-Call PE, Design and Construction Engineering Services consultant for Local Agency Projects upon written request. If Agency chooses to use said services, they agree to manage the work done by the consultant and make funds available to the State for payment of those services. All eligible work shall be a federally participating cost and included as part of the total cost of the Project.

4.  Agency guarantees the availability of Agency funding in an amount required to fully fund Agency’s share of the Project. Prior to award of the contract, the Project cost is defined as the engineer's estimate plus ten (10) percent.

5.  If Agency fails to meet the requirements of this Agreement or the underlying federal regulations, State may withhold the Agency's proportional share of Highway Fund distribution necessary to reimburse State for costs incurred by such Agency breach.

6.  Agency understands that the federal funding is allocated over a five (5) year period. If Agency wishes to construct the Project prior to the fifth year, which is Federal Fiscal Year 2009, Agency shall deposit sufficient funds to State to cover all Project costs in excess of currently available federal funds. As federal funds become available, Agency will be reimbursed that portion of the advance deposit. These funds must be deposited per Paragraph 24 of the Standard Provisions.

7.  Federal Highway Administration’s written concurrence is required for any and all design plans affecting I-5. No work will be done within or affecting I-5 airspace or State right of way without prior concurrence.

8.  Agency will be permitted to have bridge bents in State Right of Way: one bent will be located between SW Macadam Avenue and I-5 and the second bent will be located between Hood Avenue and I-5. Exact locations will be determined during final design and will accommodate an eight-lane (and one southbound truck climbing lane) section on I-5, the proposed I-5 North Macadam Ramp Project, and a bifurcation of I-405 and I-5.

9.  Agency shall design the Project to include protective screening on the pedestrian bridge for protection to I-5 and the traveling public.

10.  Illumination may be included on the pedestrian bridge for public safety but shall be direction lighting or shielded to prevent glare to vehicles on I-5 below.

11.  Agency shall provide for storm-water treatment facilities as required by City of Portland Bureau of Environmental Services for the pedestrian bridge and shall be responsible for all maintenance of said facilities.

12.  Agency shall obtain a miscellaneous permit to occupy State right of way through the State District 2A Office, 6000 SW Raab Road, Portland, OR 97221, prior to the commencement of construction. Agency agrees to comply with all provisions of State issued permits to “Occupy or Perform Operations Upon a State Highway” and to also obtain the necessary Highway Approach Permits from State’s District 2A Office, 6000 SW Raab Road, Portland, OR 97221, for all public roads and private properties adjacent to the highway according to OAR 734, Division 51. The Agency agrees to comply with all provisions of said permit, and shall require its developers, contractors, subcontractors, or consultants performing such work to comply with such provisions.

13.  Agency agrees that they are not allowed the use of additional right of way for material storage, parking or other uses related to construction, except as defined in the permit. If the contractor needs to use operating right of way for construction, Agency will obtain permission from the District Office; if Agency needs to use non-operating right of way, Agency will obtain permission through the ODOT Right of Way Property Management Office.

14.  Agency shall require its contractor(s) and subcontractor(s) to provide construction and performance bonding in an amount acceptable to State and covering State interests where the pedestrian bridge construction crosses I-5. State may be covered as a dual obligee under bonding provided to Agency as part of the pedestrian bridge project. Agency shall submit proof of said bonding to State.

15.  Agency shall, upon completion of the Project retain ownership of the pedestrian bridge. State is not granting any easement, lease, or other form of use that implies ownership rights in the land.

16.  Agency shall, on a continuing basis, ensure that construction, maintenance and operation of the Gibbs Street Pedestrian Bridge is done in a manner which will protect the safety of the motoring public and the adjacent State highway facility from damage. Such protection will extend to items thrown, falling or dropped from the structure. If maintenance will require reduced vertical clearance or traffic flow, Agency shall obtain permits as stated in paragraph No. 13 above. Agency shall be held liable and reimburse State for any damage to the adjacent State right of way for damages caused by Agency’s failure to construct, maintain or operate the facility in a safe manner. Agency will immediately notify State of any emergency situation or other problem resulting from Agency’s operations of the structure. Contact will be made with State through District 2A Maintenance or State Region One’s 24 Hour Traffic Management Operations Center (TMOC).

17.   In addition to construction of the Project, maintenance and operations of the Gibbs Street Pedestrian Bridge crossing I-5 will be contingent on issuance of Miscellaneous Facility and Operation Permits as necessary and in each instance of maintenance and operation, pursuant to OAR Ch. 734, Division 55 from State’s District 2A Maintenance Section.

18.  Agency shall, at its own expense, maintain and operate the Project upon completion and throughout the useful life of the Project at a minimum level that is consistent with normal depreciation and/or service demand. State and Agency agree that the useful life of this Project is defined as seventy-five (75) years.

19.  Maintenance and power responsibilities shall survive any termination of this Agreement.

20.  Agency will obtain structural inspections every two (2) years and provide State’s District 2A office with the results of the inspection and how any deficiencies were corrected.

21.  State may conduct periodic inspections during the life of the Project to verify that Project is being properly maintained and continues to serve the purpose for which federal funds were provided. District 2A may require Agency to perform specific maintenance (e.g. painting, graffiti removal, unauthorized signage, etc.) as necessary and required maintenance will be performed within ninety (90) days of occurrence or written notification from District 2A. If the maintenance is not performed in the required time period State may complete the maintenance and bill Agency.

22.  Agency, to the extent permitted by the Oregon Constitution and by the Oregon Tort Claim Act, shall 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 incurred on a continuing basis for the construction, use, operation, maintenance and repair, while Agency, or its contractors are employed on the Project and post-construction activities.

23.  Agency shall require its consultants and contractors to 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 incurred on a continuing basis for the construction, use, operation, maintenance and repair, while Agency, or its contractors are employed on the Project and post-construction activities.

24.  Notwithstanding the foregoing defense obligations under the paragraphs above, no indemnifying entity nor any attorney engaged by such entity 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 the entity is prohibited from defending the State of Oregon, or that the entity 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 such entity if the State of Oregon elects to assume its own defense.

25.  Agency shall require its contractors to obtain and keep in effect policies during the entire term of the project the following insurance coverage:

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 coverage that are satisfactory to the 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. Combined single limit per occurrence shall not be less than $5,000,000 for each job site or location. Each annual aggregate limit shall not be less than $10,000,000.

Professional Liability. Contractor shall obtain, at Contractor’s expense, and keep in effect during the term of this Contract, Professional Liability Insurance covering any damages caused by an error, omission or any negligent acts of the Contractor, its sub-contractors, agents, officers, or employees performance under this Contract. Combined single limit per occurrence shall not be less than $2,000,000. Annual aggregate limit shall not be less than $4,000,000.

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 combination with the Commercial General Liability Insurance (with separate limits). Combined single limit per occurrence shall not be less than $ 1,000,000.

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 the State of Oregon, the Department of Transportation, Washington Department of Transportation, and their 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.

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 the Oregon Department of Transportation. 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.

Certificate(s) of Insurance. As evidence of the insurance coverage required by this Contract, the Contractor shall furnish Certificate(s) of Insurance to the Oregon Department of Transportation prior to the award of the Contract if required by the procurement document, but in all events prior to Contractor’s commencement of work under this Contract. The Certificate(s) will specify all of the parties who are endorsed on the policy as Additional Insured (or loss Payees). Insurance coverage required under this Contract shall be obtained from insurance companies acceptable to the Oregon Department of Transportation. The Contractor shall pay for all deductibles, self-insured retention and/or self-insurance included hereunder.

26.  If Agency no longer supports the continued operation of the structure for public use, Agency shall be responsible for all costs for its removal.

27.  State may terminate the Agreement and require removal or relocation of all or part of the structure at Agency’s expense if necessary for future improvements to I-5, I-405, or for any reason relating to public safety or emergency. If the Agreement is terminated and the pedestrian bridge needs to be removed or relocated, no benefits would be paid under the Relocation Assistance Program.

28.  Agency shall, at its own expense, as a part of the Project, include a new sign bridge over I-5 if relocation is deemed necessary during project development or have freeway signs attached to the pedestrian bridge because there is a potential that the proposed pedestrian bridge will conflict or block current signing on I-5.

29.  Agency shall comply with the design standards specified in the current “Highway Mobility Operations Manual”.