HomeMy WebLinkAbout2012-006 Agrmt - ODOT Hwy 99 Restriping - Road Diet
Misc. Contracts and Agreements
No. 27940
COOPERATIVE IMPROVEMENT AGREEMENT
Ashland Highway 99 Restriping
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 Ashland, acting by and through its elected officials, hereinafter referred to
as "Agency," both herein referred to individually or collectively as "Party" or "Parties."
RECITALS
1. Oregon Route 99 (OR-99) is a part of the state highway system under the
jurisdiction and control of the Oregon Transportation Commission (OTC).
2. By the authority granted in Oregon Revised Statutes (ORS) 190.110, 366.572 and
366.576, State 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. State, by ORS, is vested with complete jurisdiction and control over the roadways of
other jurisdiction's taken for state highway purposes. By the authority granted by
ORS 373.020, jurisdiction extends from curb to curb, or, if there is no established
curb, then control extends over such portion of the right of way as may be utilized by
State for highway purposes. Responsibility for and jurisdiction over all other portions
of city streets remains with Agency.
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 Agency agree to fund, design and construct the
restriping of OR-99, hereinafter referred to as "Project." The Project includes
restriping of the roadway, signage installation and future maintenance of the facility.
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 will be financed at an estimated cost of $130,000 in State and Agency
funds. State's contribution shall be limited to $115,000 in State Bicycle/Pedestrian
funding. Agency shall contribute $15,000 to the Project. The estimate for the total
Project cost is subject to change. Agency shall be responsible for Project costs
beyond the estimate.
Key Number
03-11-11
Agency/State
Agreement No. 27940
3. The term of this Agreement shall begin on the date all required signatures are
obtained and shall terminate after three (3) calendar years.
4. The Parties shall, at Project completion, conduct good faith discussions regarding
the possibility of transferring this section of roadway to Agency.
AGENCY OBLIGATIONS
1. Agency, by execution of Agreement, gives its consent as required by ORS
373.050(1) to any and all closure of streets that intersect the state highway, if any
there be in connection with or arising out of the Project.
2. Agency shall install Project signage for the new striping. Agency shall maintain the
signage, including all weed/trash maintenance and sign visibility maintenance.
3. Agency shall keep accurate cost accounting records. Agency shall prepare and
submit monthly itemized, progress invoices for construction directly to State's
Project Manager for review and approval. Such invoices will be in a form identifying
the Project, the Agreement number, the invoice number or the account number or
both, and will itemize all expenses for which reimbursement is claimed. Under no
conditions shall State's obligations exceed $115,000, including all expenses.
4. Agency shall, within two (2) years, determine if the altered traffic design meets
Agency's needs. If Agency determines that the roadway striping does not
adequately resolve Agency's needs at the Project location, it shall be Agency's
responsibility to remove the installed features completely and return the roadway to
its current striping configuration and pre-project condition.
5. All employers, including Agency, 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. Employers Liability insurance with coverage limits of not less
than $500,000 must be included. Agency shall ensure that each of its contractors
complies with these requirements.
6. Agency 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.
7. Agency acknowledges and agrees that State, the Oregon Secretary of State's
Office, the federal government, and their duly authorized representatives shall have
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Agency/State
Agreement No. 27940
access to the books, documents, papers, and records of Agency which are directly
pertinent to the specific Agreement for the purpose of making audit, examination,
excerpts, and transcripts for a period of six (6) years after final payment or
completion of Project. Copies of applicable records shall be made available upon
request. Payment for costs of copies is reimbursable by State.
8. Agency shall require its contractor(s) and subcontractor(s) that are not units of local
government as defined in ORS 190.003, if any, to indemnify, defend, save and hold
harmless the State of Oregon, Oregon Transportation Commission and its
members, Department of Transportation and its officers, employees and agents
from and against any and all claims, actions, liabilities, damages, losses, or
expenses, including attorneys' fees, arising from a tort, as now or hereafter defined
in ORS 30.260, caused, or alleged to be caused, in whole or in part, by the negligent
or willful acts or omissions of Agency's contractor or any of the officers, agents,
employees or subcontractors of the contractor ("Claims".). It is the specific intention
of the Parties that the State shall, in all instances, except for Claims arising solely
from the negligent or willful acts or omissions of the State, be indemnified by the
contractor and subcontractor from and against any and all Claims.
9. Any such indemnification shall also provide that neither the Agency's contractor and
subcontractor nor any attorney engaged by Agency's contractor and subcontractor
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 Agency's contractor is
prohibited from defending the State of Oregon, or that Agency's contractor 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 claims it may
have against Agency's contractor if the State of Oregon elects to assume its own
defense.
10.Agency 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, Agency 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 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.
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Agency/State
Agreement No. 27940
11.Agency shall construct its portions of the Project in accordance with the
requirements of ORS 276.071 including the public contracting laws within ORS
Chapters 279A, 2798 and 279C.
12. If Agency chooses to assign its contracting responsibilities to a consultant or
contractor, Agency shall inform the consultant or contractor of the requirements of
ORS 276.071, to ensure that the public contracting laws within ORS Chapters 279A,
2798 and 279C are followed.
13.Agency shall obtain a permit to "Occupy or Perform Operations upon a State
Highway" from assigned State District 8 Project Manager as well as land use
permits, building permits, and engineering design review approval from State.
Agency agrees to comply with all provisions of said permit(s), and shall require its
developers, contractors, subcontractors, or consultants performing such work to
comply with such permit and review provisions.
14.Agency certifies and represents that the individual(s) signing this Agreement has
been authorized to enter into and execute this Agreement on behalf of Agency,
under the direction or approval of its governing body, commission, board, officers,
members or representatives, and to legally bind Agency.
15.Agency's Project Manager for this Project is Mike Faught, Public Works Director,
City of Ashland, 51 Winburn Way, Ashland, OR 97520; (541) 552-2411, or assigned
designee upon individual's absence. Agency shall notify the other Party in writing of
any contact information changes during the term of this Agreement.
STATE OBLIGATIONS
1. State shall conduct the striping, and provide for road closures and/or detours.
2. 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 the current biennial budget.
0
3. State, or its consultant, shall conduct the necessary field surveys, environmental
studies, traffic investigations, preliminary engineering and design work required to
produce and provide final plans, specifications and cost estimates for the highway
Project; identify and obtain all required permits; perform all construction engineering,
including all required materials testing and quality documentation; prepare all bid
and contract documents; advertise for construction bid proposals; award all
contracts; pay all contractor costs, provide technical inspection, project management
services and other necessary functions for sole administration of the construction
contract entered into for this Project.
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Agreement No. 27940
4. State grants authority to Agency to enter upon State right of way for Agency's
portions of this Project as provided for in miscellaneous permit to be issued by State
District 8 Office.
5. State's Project Manager for this Project is Jerry Marmon, ODOT Region 3 District 8
Manager, 100 Antelope Road, White City, OR 97503; (541) 774-6355;
jerry.marmon@odot.state. or.us, or assigned designee upon individual's absence.
State shall notify the other Party in writing of any contact information changes during
the term of this Agreement.
GENERAL PROVISIONS
1. This Agreement may be terminated by mutual written consent of both Parties.
2. 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.
3. Any termination of this Agreement shall not prejudice any rights or obligations
accrued to the Parties prior to termination.
4. If any third party makes any claim or brings any action, suit or proceeding alleging a
tort as now or hereafter defined in ORS 30.260 ("Third Party Claim") against State
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Agency/State
Agreement No. 27940
or Agency with respect to which the other Party may have liability, the notified Party
must promptly notify the other Party in writing of the Third Party Claim and deliver to
the other Party a copy of the claim, process, and all legal pleadings with respect to
the Third Party Claim. Each Party is entitled to participate in the defense of a Third
Party Claim, and to defend a Third Party Claim with counsel of its own choosing.
Receipt by a Party of the notice and copies required in this paragraph and
meaningful opportunity for the Party to participate in the investigation, defense and
settlement of the Third Party Claim with counsel of its own choosing are conditions,
precedent to that Party's liability with respect to the Third Party Claim.
5. With respect to a Third Party Claim for which State is jointly liable with Agency (or
would be if joined in the Third Party Claim), State shall contribute to the amount of
expenses (including attorneys' fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred and paid or payable by Agency in such
proportion as is appropriate to reflect the relative fault of State on the one hand and
of Agency on the other hand in connection with the events which resulted in such
expenses, judgments, fines or settlement amounts, as well as any other relevant
equitable considerations. The relative fault of State on the one hand and of Agency
on the other hand shall be determined by reference to, among other things, the
Parties' relative intent, knowledge, access to information and opportunity to correct
or prevent the circumstances resulting in such expenses, judgments, fines or
settlement amounts. State's contribution amount in any instance is capped to the
same extent it would have been capped under Oregon law, including the Oregon
- Tort Claims Act, ORS 30.260 to 30.300, if State had sole liability in the proceeding.
6. With respect to a Third Party Claim for which Agency is jointly liable with State (or
would be if joined in the Third Party Claim), Agency shall contribute to the amount of
expenses (including attorneys' fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred and paid or payable by State in such
proportion as is appropriate to reflect the relative fault of Agency on the one hand
and of State on the other hand in connection with the events which resulted in such
expenses, judgments, fines or settlement amounts, as well as any other relevant
equitable considerations. The relative fault of Agency on the one hand and of State
on the other hand shall be determined by reference to, among other things, the
Parties' relative intent, knowledge, access to information and opportunity to correct
or prevent the circumstances resulting in such expenses, judgments, fines or
settlement amounts. Agency's contribution amount in any instance is capped to the
same extent it would have been capped under Oregon law, including the Oregon
Tort Claims Act, ORS 30.260 to 30.300, if it had sole liability in the proceeding.
7. The Parties shall attempt in good faith to resolve any dispute arising out of this
Agreement. In addition, the Parties may agree to utilize a jointly selected mediator or
arbitrator (for'non-binding arbitration) to resolve the dispute short of litigation.
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Agency/State
Agreement-No. 27940
8. 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.
9. 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.
THE PARTIES, by execution of this Agreement, hereby acknowledge that their signing
representatives have read this Agreement, understand it, and agree 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 August 2, 2005, the Director, Deputy Director, Highways and Chief Engineer
approved Subdelegation Order No. 5, in which the Director, Deputy Director, Highways
and Chief Engineer delegate. authority to the Region Managers to approve and sign
intergovernmental agreements over $75,000 up to a maximum of $500,000 when the
work is related to a project included in the Statewide Transportation Improvement
Program (STIP) or in other system plans approved by the Oregon Transportation
Commission or in a line item in the legislatively adopted biennial budget.
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Agency/State
Agreement No. 27940
City of Ashland, by and through its elected STATE O -OR ON, by and through
officials its De of Tran rtation
By t~s B
Date Region Manager
By 4e Date
Date APPROVAL COMMENDED
APPROV D AS TO J AL SUFFICIENCY By
By fine D strict Manager
Coun e 2 _ Z
Date z
Date 079 2
APPROVED AS TO LEGAL
Asrencv Contact SUFFICIENCY
Michael R. Faught, Public Works Director
City of Ashland By
20 E. Main Street Assistant Attorney General
Ashland, OR 97520
Phone: (541) 4885587 Date
fauahtm0ashland or.us
State Contact:
ODOT Region 3 Agreement Coordinator
3500 NW Stewart Pkwy
Roseburg, OR 97470
(641) 957-3510
Jay. harris@odot.state, or, us
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Agency/State
Agreement No. 27940,
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