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State of Oregon - Amendment #2 - Congestion Mitigation & Air Quality Program Misc. Contracts and Agreements No. 31030 AMENDMENT NUMBER 02 LOCAL AGENCY AGREEMENT CONGESTION MITIGATION AND AIR QUALITY PROGRAM Fanno Creek Trail: Woodard Park-Bonita Rd/85th Ave-Tualatin Br. This is Amendment No. 02 to the Agreement between the State of Oregon, acting by and through its Department of Transportation, hereinafter referred to as "State" or "ODOT," and the Portland Urbanized Area Metropolitan Planning Organization, acting by and through its elected officials, hereinafter referred to as "Metro," and the City of Tigard, acting by and through its elected officials, hereinafter referred to as "Agency," entered into on October 10, 2016, and Amendment No. 01, entered into on July 31, 2017. It has now been determined by State and Metro and Agency that the Agreement referenced above shall be amended to extend all milestones, adjust funding amounts, update contact information, and update language. 1. Effective Date. This Amendment shall become effective on the date it is fully executed and approved as required by applicable law. 2. Amendment to Agreement. a. Terms of Agreement, Paragraph 2, Page 2, which reads: 2. The total Project cost is estimated at $4,905,187, which is subject to change. The federal funds are limited to $4,401,424. The Project will be financed with federal funds at the maximum allowable federal participating amount, which is 89.73 percent, with Agency providing the 10.27 percent match for eligible costs and paying for any non-participating costs, including all costs in excess of the available federal funds. Agency is not guaranteed the use of unspent funds. Moving funds between phases requires the approval of State's CMAQ Program Manager. Shall be deleted in its entirety and replaced with the following: 2. The total Project cost is estimated at $8,848,378.00, which is subject to change. The federal funds are limited to $5,096,840.77. The Project will be financed with federal funds at the maximum allowable federal participating amount, which is 89.73 percent, with Agency providing the 10.27 percent match for eligible costs and paying for any non-participating costs, including all costs in excess of the available federal funds. Agency is not guaranteed the use of unspent funds. Moving funds between phases requires the approval of State's CMAQ Program Manager. Key No. 19327 Agency/State/Metro Agreement No. 31030-02 b. Terms of Agreement, Paragraph 22, Page 5, which reads: 22.State's Project Manager for the Agreement is Justin Shoemaker, R1 Local Agency Liaison, 123 NW Flanders Street, Portland, Oregon 97209, (503) 731-8486, justin.d.shoemaker(a odot.state.or.us, or assigned designee upon individual's absence. Agency shall notify the other Parties in writing of any contact information changes during the term of this Agreement. Shall be deleted in its entirety and replaced with the following: 22.State's Project Manager for the Agreement is Katie Gillespie, R1 Local Agency Liaison, 123 NW Flanders Street, Portland, Oregon 97209, 503-731-3016, Katie.J.GILLESPIE a(�odot.oreoon.gov, or assigned designee upon absence. State shall notify the other Parties in writing of any contact information changes during the term of this Agreement. c. Terms of Agreement, Paragraph 23, Page 5, which reads: 23.Agency's Project Manager for this Agreement is Mike McCarthy, Project Manager, 13125 SW Hall Blvd., Tigard, OR 97223, 503-718-2462, mikem(a tigard-or.gov or assigned designee upon individual's absence. Agency shall notify the other Parties in writing of any contact information changes during the term of this Agreement. Shall be deleted in its entirety and replaced with the following: 23.Agency's Project Manager for this Agreement is Zach Morris, Senior Project Engineer, 13125 SW Hall Blvd., Tigard, OR 97223, 503-718-2467, zacharym©tigard-or.gov, or assigned designee upon individual's absence. Agency shall notify the other Parties in writing of any contact information changes during the term of this Agreement. d. Terms of Agreement, Paragraphs 25— 26, which read: 25.When the Project scope includes work on sidewalks, curb ramps, or pedestrian-activated signals or triggers an obligation to address curb ramps or pedestrian signals, shared use path, the Parties shall: a. Utilize ODOT standards to assess and ensure Project compliance with the Americans with Disabilities Act of 1990 (ADA), including ensuring that all sidewalks, curb ramps, and pedestrian-activated signals meet current ODOT Highway Design Manual standards; b. Follow ODOT's processes for design, modification, upgrade, or construction of sidewalks, curb ramps, and pedestrian-activated signals, including using the ODOT Highway Design Manual, ODOT Design Exception process, ODOT Standard Drawings, ODOT Construction Specifications, providing a temporary pedestrian accessible route plan and current ODOT Curb Ramp Inspection form; 2 Agency/State/Metro Agreement No. 31030-02 c. At Project completion, send an ODOT Curb Ramp Inspection Form 734- 5020 to the address on the form as well as to State's Project Manager for each curb ramp constructed, modified, upgraded, or improved as part of the Project. The completed form is the documentation required to show that each curb ramp meets ODOT standards and is ADA compliant. ODOT's fillable Curb Ramp Inspection Form and instructions are available at the following address: http://www.oregon.gov/ODOT/HWY/CONSTRUCTION/Pages/HwyConstF ormsl.aspx; and 26.Agency shall, at its own expense, maintain and periodically inspect any sidewalks, curb ramps, and pedestrian-activated signals on portions of the Project under Agency's maintenance jurisdiction upon Project completion and throughout the useful life of the Project to ensure continuing compliance with the ADA. This provision shall survive termination of this Agreement. Shall be deleted in its entirety and replaced with the following: 25.When the Project scope includes work on sidewalks, curb ramps, or pedestrian-activated signals or triggers an obligation to address curb ramps or pedestrian signals, the Parties shall: a. Utilize ODOT standards to assess and ensure Project compliance with Section 504 of the Rehabilitation Act of 1973 and the Americans with Disabilities Act of 1990 as amended (together, "ADA"), including ensuring that all sidewalks, curb ramps, and pedestrian-activated signals meet current ODOT Highway Design Manual standards; b. Follow ODOT's processes for design, construction, or alteration of sidewalks, curb ramps, and pedestrian-activated signals, including using the ODOT Highway Design Manual, ODOT Design Exception process, ODOT Standard Drawings, ODOT Construction Specifications, providing a temporary pedestrian accessible route plan and current ODOT Curb Ramp Inspection form; c. At Project completion, send a completed ODOT Curb Ramp Inspection Form 734-5020 to the address on the form as well as to State's Project Manager for each curb ramp constructed or altered as part of the Project. The completed form is the documentation required to show that each curb ramp meets ODOT standards and is ADA compliant. ODOT's fillable Curb Ramp Inspection Form and instructions are available at the following address: https://www.oreqon.qov/ODOT/Enqineerinq/Paqes/Accessibility.aspx. 26.Agency shall ensure that any portions of the Project under Agency's maintenance jurisdiction are maintained in compliance with the ADA 3 Agency/State/Metro Agreement No. 31030-02 throughout the useful life of the Project. This includes, but is not limited to, Agency ensuring that: a. Pedestrian access is maintained as required by the ADA, b. Any complaints received by Agency identifying sidewalk, curb ramp, or pedestrian-activated signal safety or access issues are promptly evaluated and addressed, c. Agency, or abutting property owner, pursuant to local code provisions, performs any repair or removal of obstructions needed to maintain the facility in compliance with the ADA requirements that were in effect at the time the facility was constructed or altered, d. Any future alteration work on Project or Project features during the useful life of the Project complies with the ADA requirements in effect at the time the future alteration work is performed, and e. Applicable permitting and regulatory actions are consistent with ADA requirements. f. Maintenance obligations in this section shall survive termination of this Agreement. e. EXHIBIT B, Paragraph 4, Page 10, which reads: 4. Proiect Milestones — The Parties agree that the dates shown in Table 1 constitute the intended schedule for advancing and completing the Project. Project Milestones may only be changed through amendment of this Agreement, after obtaining an approved Project Change Request. Table 1: Project Milestones Milestone Description Completion Date 1 Obligation (Federal Authorization) of Federal funds for December 31, 2017 the Preliminary Engineering phase of the Project 2 Obligation (Federal Authorization) of Federal Funds for December 31, 2018 the Right of Way phase of the Project (if needed) 3 Obligation (Federal Authorization) of Federal for December 31, 2019 the Construction phase of the Project Shall be deleted in its entirety and replaced with the following: 4. RESERVED f. EXHIBIT B, Paragraph 8, Page 12, which reads: 8. Consequence for Non-Performance - If Agency fails to fulfill its obligations in 4 Agency/State/Metro Agreement No. 31030-02 paragraphs No. 3 through No. 7 above, or does not assist in advancing the Project or perform tasks that the Agency is responsible for under the Project Milestones, State's course of action through the duration of Agency's default may include: (a) restricting Agency consideration for future funds awarded through State's managed funding programs, (b) withdrawing unused Project funds, and (c) terminating this Agreement as stated in Terms of Agreement, Paragraph No. 12a and 12b. State may also choose to bill Agency for expenses incurred by State for staff time to assist in completion of the final project documentation and issuance of Third Notification. Shall be deleted in its entirety and replaced with the following: 8. Consequence for Non-Performance - If Agency fails to fulfill its obligations in paragraphs No. 3 through No. 7 above, or does not assist in advancing the Project or perform tasks that the Agency is responsible for, State's course of action through the duration of Agency's default may include: (a) restricting Agency consideration for future funds awarded through State's managed funding programs, (b) withdrawing unused Project funds, and (c) terminating this Agreement as stated in Terms of Agreement, Paragraph No. 12a and 12b. State may also choose to bill Agency for expenses incurred by State for staff time to assist in completion of the final project documentation and issuance of Third Notification. g. EXHIBIT D, Federal Funding Accountability and Transparency Act (FFATA) Subaward Reporting, shall be deleted in its entirety and replaced with the attached REVISED EXHIBIT D. All references to "Exhibit D" shall hereinafter be referred to as "Revised Exhibit D." h. ATTACHMENT NO. 2 FEDERAL STANDARD PROVISIONS shall be deleted in its entirety and replaced with the attached REVISED ATTACHMENT NO. 2 FEDERAL STANDARD PROVISIONS. All references to "ATTACHMENT NO. 2 FEDERAL STANDARD PROVISIONS" shall hereinafter be referred to as "REVISED ATTACHMENT NO. 2 FEDERAL STANDARD PROVISIONS." 3. Counterparts. This Amendment may be executed in two or more counterparts (by facsimile or otherwise) each of which is an original and all of which when taken together are deemed one agreement binding on all Parties, notwithstanding that all Parties are not signatories to the same counterpart. 4. Original Agreement. Except as expressly amended above, all other terms and conditions of the original Agreement, as amended, are still in full force and effect. Agency certifies that the representations, warranties and certifications in the original Agreement, as amended, are true and correct as of the effective date of this Amendment and with the same effect as though made at the time of this Amendment. 5 Agency/State/Metro Agreement No. 31030-02 5. Electronic Signatures. The Parties agree that signatures showing on PDF documents, including but not limited to PDF copies of the Agreement and amendments, submitted or exchanged via email are "Electronic Signatures" under ORS Chapter 84 and bind the signing Party and are intended to be and can be relied upon by the Parties. State reserves the right at any time to require the submission of the hard copy originals of any documents. 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. This Project is in the 2021-2024 Statewide Transportation Improvement Program (STIP), (Key #19327) that was adopted by the Oregon Transportation Commission on July 15, 2020 (or subsequently approved by amendment to the STIP). SIGNATURE PAGE TO FOLLOW 6 Agency/State/Metro Agreement No. 31030-02 CITY OF TIGARD, by and through its STATE OF OREGON, by and through elected officials its Department of Transportation By By M, Mayor Delivery an Op tions Division Administrator Date Date 6/20/23 LEGAL REVIEW APPROVAL APPROVAL RECOMMENDED (If required in Agency's process) BY By Region 1 Manager Agency's Legal Counsel Date 6-( Date B .�I Y Agency Contact: Active ' an. •ortation Section Manager Zach Morris, Senior Project Engineer 13125 SW Hall Blvd Date 6/12/2023 Tigard, OR 97223 503-718-2467 By 4 zacharymna.tigard-or.gov Region 1 Project Services Manager METRO, by and through its elected Date 06/01/2023 officials /V)7; APPROVED AS TO LEGAL By y ��� ;� �(� r'�__ SUFFICIENCY Date May 31, 2023 By Jennifer O'Brien Assistant Attorney General LEGAL REVIEW APPROVAL (If required in Agency's process) Date via email dated April 6s 2023 By State Contact: Metro's Legal Counsel Katie Gillespie, Local Agency Liaison 123 NW Flanders Date May 25, 2023 Portland, OR 97209 503.731.3016 Metro Contact: Katie.J,GILLESPIE(a�odot.oregon.nov Olena Turula, Senior Regional Planner 600 NE Grand Ave Portland, OR 97232 503-813-7560 Olena.Turulaoregonmetro.gov 7 Agency/State/Metro Agreement No. 31030-02 CITY OF TIGARD, by and through its STATE OF OREGON, by and through elected officials its Department of Transportation By By Mayor Highway Division Administrator Date 41 \2 -3 Date LEGAL REVIEW APPROVAL APPROVAL RECOMMENDED (If required in Agency's process) By By - Region 1 Manager � 9Le A enc al Counsel 9 Date Date �i IAO 92-2 By Agency Contact: Active Transportation Section Manager Zach Morris, Senior Project Engineer 13125 SW Hall Blvd Date Tigard, OR 97223 503-718-2467 By zacharym(a�tigard-or.gov Region 1 Project Services Manager METRO, by and through its elected Date officials APPROVED AS TO LEGAL By SUFFICIENCY Date By Jennifer O'Brien Assistant Attorney General LEGAL REVIEW APPROVAL (If required in Agency's process) Date via email dated April 6, 2023 By State Contact: Metro's Legal Counsel Katie Gillespie, Local Agency Liaison 123 NW Flanders Date Portland, OR 97209 503.731.3016 Metro Contact: Katie.J.GILLESPIE(u odot.oregon.gov Olena Turula, Senior Regional Planner 600 NE Grand Ave Portland, OR 97232 503-813-7560 Olena.Turula anoregonmetro.gov 7 Agency/State/Metro Agreement No. 31030-02 Revised Exhibit D Federal Funding Accountability and Transparency Act(FFATA) Subaward Reporting (For purposes of this Exhibit, references to "your organization" shall mean "Agency" and references to"ODOT"shall mean "State.") The Oregon Department of Transportation (ODOT) is required to fulfill a federal requirement for contracting under the Federal Funding Accountability and Transparency Act (FFATA) Subaward Reporting System (FSRS). FFATA reporting is a requirement for subawards (also known as subrecipients) of federal awards in excess of$25,000,000. Your organization will enter into an agreement with ODOT where the funding source is a federal grant with a subrecipient relationship. Your organization is required to submit the information below to the Oregon Department of Transportation within fourteen calendar days of execution of the Agreement and annually thereafter, if applicable. (See the following page for further details.) Legal entity name: Unique Entity ID (UEI) number: Executive compensation Executive compensation information is also required to determine whether or not the following information must be reported in FSRS: a. In your organization's previous fiscal year, did your organization receive 80% or more of its annual gross revenue and $25,000,000 or more in federal procurement contracts, subcontracts, loans, grants, subgrants, cooperative agreements and federal financial assistance awards subject to the Transparency Act? (Include parent organization, all branches, and all affiliates worldwide.) ❑Yes ❑ No If"yes," proceed to b. If"no," no further action is required and submittal of this form is not required. b. Does the public have access to information about the compensation of the senior executives in your organization (including parent organization, all branches, and all affiliates worldwide)through periodic reports filed under section 13(a) or 15(d) of the Securities and Exchange Act of 1934 (15 U.S.C. 78m(a), 78o(d)) or section 6104 of the Internal Revenue Code of 1986? ❑ Yes ❑ No If"yes," provide a link to the SEC: http://www.sec.gov where this information is located and return form to the ODOT contact shown at the bottom of this form. Provide link here: If"no," provide compensation information below. Names and annual compensation amounts of the five most highly compensated executives: 1. $ 2. $ 3. $ 4. $ 5. $ Business entity contact information (person completing form): Type name Title Date Return completed form to: Alice Bibler, Program and Funding Services Manager; Oregon Department of Transportation; 355 Capitol Street NE, MS 11; Salem,OR 97301;Alice.Bibleraodot.oregon.gov 734-5075(10-28-2016) Page 8 Agency/State/Metro Agreement No. 31030-02 Background on FFATA requirements The Federal Funding Accountability and Transparency Act (FFATA) was signed on September 26, 2006. The intent is of the Act is to empower every American with the ability to hold the government accountable for each spending decision. The end result is to reduce wasteful spending in the government. The FFATA legislation requires information on federal awards (federal financial assistance and expenditures) be made available to the public via a single, searchable website, which is www.USASpendinq.qov. Definition of compensation Your organization is considered a subrecipient of federal funds. Unless your organization is exempt, FFATA requires you to report total compensation for each of your five most highly compensated executives for the preceding completed year. Total compensation means the cash and non-cash dollar value earned by the executive during the subrecipient's preceding fiscal year and includes the following: salary and bonus; awards of stock, stock options, and stock appropriation rights; earnings for services under non-equity incentive plans; change in pension value; above-market earnings on deferred compensation which is not tax-qualified; and other compensation as defined in 2 CFR Part 170, Section 170.330(b)(5)(vi). More detailed information about the FFATA can be found at: http://edocket.access.gpo.gov/2010/pdf/2010-22705.pdf If you have any questions on this Exhibit, contact: Alice Bibler Program and Funding Services Manager Oregon Department of Transportation 355 Capitol Street NE, MS 11 Salem, OR, 97301-3871 Alice.Bibler(a odot.oregon.gov Telephone: 971-719-6313 734-5075 (10-28-2016) Page 9 ATTACHMENT NO. 2 FEDERAL STANDARD PROVISIONS PROJECT ADMINISTRATION 1. State (ODOT) is acting to fulfill its responsibility to the Federal Highway Administration (FHWA) by the administration of this Project, and Agency (i.e. county, city, unit of local government, or other state agency) hereby agrees that State shall have full authority to carry out this administration. If requested by Agency or if deemed necessary by State in order to meet its obligations to FHWA, State will act for Agency in other matters pertaining to the Project. Prior to taking such action, State will confer with Agency concerning actions necessary to meet federal obligations. State and Agency shall each assign a person in responsible charge "liaison" to coordinate activities and assure that the interests of both Parties are considered during all phases of the Project. 2. Any project that uses federal funds in project development is subject to plans, specifications and estimates (PS&E) review and approval by FHWA or State acting on behalf of FHWA prior to advertisement for bid proposals, regardless of the source of funding for construction. 3. State will provide or secure services to perform plans, specifications and estimates (PS&E), construction contract advertisement, bid, award, contractor payments and contract administration. A State-approved consultant may be used to perform preliminary engineering, right of way and construction engineering services. 4. Agency may perform only those elements of the Project identified in the special provisions. PROJECT FUNDING REQUEST 5. State shall submit a separate written Project funding request to FHWA requesting approval of federal-aid participation for each project phase including a) Program Development (Planning), b) Preliminary Engineering (National Environmental Policy Act - NEPA, Permitting and Project Design), c) Right of Way Acquisition, d) Utilities, and e) Construction (Construction Advertising, Bid and Award). Any work performed prior to FHWA's approval of each funding request will be considered nonparticipating and paid for at Agency expense. State, its consultant or Agency shall not proceed on any activity in which federal-aid participation is desired until such written approval for each corresponding phase is obtained by State. State shall notify Agency in writing when authorization to proceed has been received from FHWA. All work and records of such work shall be in conformance with FHWA rules and regulations. FINANCE 6. Federal funds shall be applied toward Project costs at the current federal-aid matching ratio, unless otherwise agreed and allowable by law. Agency shall be responsible for the entire match amount for the federal funds and any portion of the Project, which is not covered by federal funding, unless otherwise agreed to and specified in the intergovernmental Agreement (Project Agreement). Agency must obtain written approval from State to use in-kind contributions rather than cash to satisfy all or part of the matching funds requirement. If federal funds are used, State 10 STDPRO-2019 Rev. 08-02-2019 Agency/State/Metro Agreement No. 31030-02 will specify the Catalog of Federal Domestic Assistance (CFDA) number in the Project Agreement. State will also determine and clearly state in the Project Agreement if recipient is a subrecipient or contractor, using the criteria in 2 CFR 200.331. 7. If the estimated cost exceeds the total matched federal funds available, Agency shall deposit its share of the required matching funds, plus 100 percent of all costs in excess of the total matched federal funds. Agency shall pay one hundred (100) percent of the cost of any item in which FHWA will not participate. If Agency has not repaid any non-participating cost, future allocations of federal funds or allocations of State Highway Trust Funds to Agency may be withheld to pay the non-participating costs. If State approves processes, procedures, or contract administration that result in items being declared non-participating by FHWA, such items deemed non-participating will be negotiated between Agency and State. Agency agrees that costs incurred by State and Agency for services performed in connection with any phase of the Project shall be charged to the Project, unless otherwise mutually agreed upon by the Parties. 8. Agency's estimated share and advance deposit. a) Agency shall, prior to commencement of the preliminary engineering and/or right of way acquisition phases, deposit with State its estimated share of each phase. Exception may be made in the case of projects where Agency has written approval from State to use in-kind contributions rather than cash to satisfy all or part of the matching funds requirement. b) Agency's construction phase deposit shall be one hundred ten (110) percent of Agency's share of the engineer's estimate and shall be received prior to award of the construction contract. Any additional balance of the deposit, based on the actual bid, must be received within forty-five (45) days of receipt of written notification by State of the final amount due, unless the contract is cancelled. Any balance of a cash deposit in excess of amount needed, based on the actual bid, will be refunded within forty-five (45) days of receipt by State of the Project sponsor's written request. c) Pursuant to Oregon Revised Statutes (ORS) 366.425, the advance deposit may be in the form of 1) money deposited in the State Treasury (an option where a deposit is made in the Local Government Investment Pool), and an Irrevocable Limited Power of Attorney is sent to State's Active Transportation Section, Funding and Program Services Unit, or 2) an Irrevocable Letter of Credit issued by a local bank in the name of State, or 3) cash or check submitted to the Oregon Department of Transportation. 9. If Agency makes a written request for the cancellation of a federal-aid project; Agency shall bear one hundred (100) percent of all costs incurred as of the date of cancellation. If State was the sole cause of the cancellation, State shall bear one hundred (100) percent of all costs incurred. If it is determined that the cancellation was caused by third parties or circumstances beyond the control of State or Agency, Agency shall bear all costs, whether incurred by State or Agency, either directly or through contract services, and State shall bear any State administrative costs incurred. 11 STD PRO-2021 Rev. 07-08-2021 Agency/State/Metro Agreement No. 31030-02 After settlement of payments, State shall deliver surveys, maps, field notes, and all other data to Agency. 10. Agency shall make additional deposits, as needed, upon request from State. Requests for additional deposits shall be accompanied by an itemized statement of expenditures and an estimated cost to complete the Project. 11. Agency shall, upon State's written request for reimbursement in accordance with Title 23, CFR part 630.112(c) 1 and 2, as directed by FHWA, reimburse State for federal-aid funds distributed to Agency if any of the following events occur: a) Right of way acquisition is not undertaken or actual construction is not started by the close of the twentieth federal fiscal year following the federal fiscal year in which the federal-aid funds were authorized for right of way acquisition. Agency may submit a written request to State's Liaison for a time extension beyond the twenty (20) year limit with no repayment of federal funds and State will forward the request to FHWA. FHWA may approve this request if it is considered reasonable. b) Right of way acquisition or actual construction of the facility for which preliminary engineering is undertaken is not started by the close of the tenth federal fiscal year following the federal fiscal year in which the federal-aid funds were authorized. Agency may submit a written request to State's Liaison for a time extension beyond the ten (10) year limit with no repayment of federal funds and State will forward the request to FHWA. FHWA may approve this request if it is considered reasonable. 12. State shall, on behalf of Agency, maintain all Project documentation in keeping with State and FHWA standards and specifications. This shall include, but is not limited to, daily work records, quantity documentation, material invoices and quality documentation, certificates of origin, process control records, test results, and inspection records to ensure that the Project is completed in conformance with approved plans and specifications. 13. State shall submit all claims for federal-aid participation to FHWA in the normal manner and compile accurate cost accounting records. State shall pay all reimbursable costs of the Project. Agency may request a statement of costs-to-date at any time by submitting a written request. When the final total cost of the Project has been computed, State shall furnish Agency with an itemized statement. Agency shall pay an amount which, when added to said advance deposit and federal reimbursement payment, will equal one hundred (100) percent of the final total cost of the Project. Any portion of deposits made in excess of the final total cost of the Project, minus federal reimbursement, shall be released to Agency. The actual cost of services provided by State will be charged to the Project expenditure account(s) and will be included in the final total cost of the Project. DESIGN STANDARDS 14.Agency and State agree that minimum design standards on all local agency jurisdictional roadway or street projects on the National Highway System (NHS) and projects on the non-NHS shall be 12 STDPRO-2021 Rev. 07-08-2021 Agency/State/Metro Agreement No. 31030-02 the American Association of State Highway and Transportation Officials (AASHTO) standards and be in accordance with State's Oregon Bicycle & Pedestrian Design Guide (current version). State or its consultant shall use either AASHTO's A Policy on Geometric Design of Highways and Streets (current version) or State's Resurfacing, Restoration and Rehabilitation (3R) design standards for 3R projects. State or its consultant may use AASHTO for vertical clearance requirements on Agency's jurisdictional roadways or streets. 15.Agency agrees that if the Project is on the Oregon State Highway System or a State-owned facility, that design standards shall be in compliance with standards specified in the current ODOT Highway Design Manual and related references. Construction plans for such projects shall be in conformance with standard practices of State and all specifications shall be in substantial compliance with the most current Oregon Standard Specifications for Highway Construction and current Contract Plans Development Guide. 16. State and Agency agree that for all projects on the Oregon State Highway System or a State- owned facility, any design element that does not meet ODOT Highway Design Manual design standards must be justified and documented by means of a design exception. State and Agency further agree that for all projects on the NHS, regardless of funding source; any design element that does not meet AASHTO standards must be justified and documented by means of a design exception. State shall review any design exceptions on the Oregon State Highway System and retain authority for said approval. FHWA shall review any design exceptions for projects subject to Project of Division Interest and retains authority for their approval. 17. ODOT agrees all traffic control devices and traffic management plans shall meet the requirements of the current edition of the Manual on Uniform Traffic Control Devices and Oregon Supplement as adopted in Oregon Administrative Rule (OAR) 734-020-0005. State or its consultant shall, on behalf of Agency, obtain the approval of the State Traffic Engineer prior to the design and construction of any traffic signal, or illumination to be installed on a state highway pursuant to OAR 734-020-0430. PRELIMINARY & CONSTRUCTION ENGINEERING 18. Preliminary engineering and construction engineering may be performed by either a) State, or b) a State-approved consultant. Engineering work will be monitored by State to ensure conformance with FHWA rules and regulations. Project plans, specifications and cost estimates shall be performed by either a) State, or b) a State-approved consultant. State shall review and approve Project plans, specifications and cost estimates. State shall, at project expense, review, process and approve, or submit for approval to the federal regulators, all environmental statements. State shall offer Agency the opportunity to review the documents prior to advertising for bids. 19. Architectural, engineering, photogrammetry, transportation planning, land surveying and related services (A&E Services) as needed for federal-aid transportation projects must follow the State's processes to ensure federal reimbursement. State will award, execute, and administer the contracts. State's personal services contracting process and resulting contract document will follow Title 23 CFR part 172, 2 CFR part 1201, ORS 279A.055, 279C.110, 279C.125, OAR 731- 148-0130, OAR 731-148-0220(3), OAR 731-148-0260 and State Personal Services Contracting 13 STD PRO-2021 Rev. 07-08-2021 Agency/State/Metro Agreement No. 31030-02 Procedures, as applicable and as approved by the FHWA. Such personal services contract(s) shall contain a description of the work to be performed, a project schedule, and the method of payment. No reimbursement shall be made using federal-aid funds for any costs incurred by Agency or the state approved consultant prior to receiving authorization from State to proceed. 20. The State or its consultant responsible for performing preliminary engineering for the Project shall, as part of its preliminary engineering costs, obtain all Project related permits necessary for the construction of said Project. Said permits shall include, but are not limited to, access, utility, environmental, construction, and approach permits. All pre-construction permits will be obtained prior to advertisement for construction. 21. State shall prepare construction contract and bidding documents, advertise for bid proposals, award all construction contracts, and administer the construction contracts. 22. Upon State's award of a construction contract, State shall perform quality assurance and independent assurance testing in accordance with the FHWA-approved Quality Assurance Program found in State's Manual of Field Test Procedures, process and pay all contractor progress estimates, check final quantities and costs, and oversee and provide intermittent inspection services during the construction phase of the Project. 23. State shall, as a Project expense, assign a liaison to provide Project monitoring as needed throughout all phases of Project activities (preliminary engineering, right-of-way acquisition, and construction). State's liaison shall process reimbursement for federal participation costs. Disadvantaged Business Enterprises (DBE) Obligations 24. State and Agency agree to incorporate by reference the requirements of 49 CFR part 26 and State's DBE Program Plan, as required by 49 CFR part 26 and as approved by USDOT, into all contracts entered into under this Project Agreement. The following required DBE assurance shall be included in all contracts: "The contractor or subcontractor shall not discriminate on the basis of race, color, national origin, or sex in the performance of this contract. The contractor shall carry out applicable requirements of Title 49 CFR part 26 in the award and administration of federal-aid contracts. Failure by the contractor to carry out these requirements is a material breach of this contract, which may result in the termination of this contract or such other remedy as Agency deems appropriate. Each subcontract the contractor signs with a subcontractor must include the assurance in this paragraph (see 49 CFR 26.13(b))." 25. State and Agency agree to comply with all applicable civil rights laws, rules and regulations, including Title V and Section 504 of the Rehabilitation Act of 1973, the Americans with Disabilities Act of 1990 (ADA), and Titles VI and VII of the Civil Rights Act of 1964. 26. The Parties hereto agree and understand that they will comply with all applicable federal, state, and local laws, regulations, executive orders and ordinances applicable to the work including, but not limited to, the provisions of ORS 279C.505, 279C.515, 279C.520, 279C.530 and 2796.270, incorporated herein by reference and made a part hereof; Title 23 CFR parts 1.11, 140, 635, 710, 14 STDPRO-2021 Rev. 07-08-2021 Agency/State/Metro Agreement No. 31030-02 and 771; Title 49 CFR parts 24 and 26; , 2 CFR 1201; Title 23, USC, Federal-Aid Highway Act; Title 41, Chapter 1, USC 51-58, Anti-Kickback Act; Title 42 USC; Uniform Relocation Assistance and Real Property Acquisition Policy Act of 1970, as amended, the provisions of the FAPG and FHWA Contract Administration Core Curriculum Participants Manual & Reference Guide. State and Agency agree that FHWA-1273 Required Contract Provisions shall be included in all contracts and subcontracts verbatim and not by reference. RIGHT OF WAY 27. Right of Way activities shall be conducted in accordance with the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, as amended, ORS Chapter 35, FAPG, CFR, and the ODOT Right of Way Manual, Title 23 CFR part 710 and Title 49 CFR part 24. 28. State is responsible for proper acquisition of the necessary right of way and easements for construction and maintenance of projects. State or its consultant may perform acquisition of the necessary right of way and easements for construction and maintenance of the Project in accordance with the ODOT Right of Way Manual, and with the prior approval from State's Region Right of Way office. 29. If the Project has the potential of needing right of way, to ensure compliance in the event that right of way is unexpectedly needed, a right of way services agreement will be required. State, at Project expense, shall be responsible for requesting the obligation of project funding from FHWA. State, at Project expense, shall be entirely responsible for project acquisition and coordination of the right of way certification. 30. State or its consultant shall ensure that all project right of way monumentation will be conducted in conformance with ORS 209.155. 31. State and Agency grant each other authority to enter onto the other's right of way for the performance of non-construction activities such as surveying and inspection of the Project. RAILROADS 32. State shall follow State established policy and procedures when impacts occur on railroad property. The policy and procedures are available through the State's Liaison, who will contact State's Railroad Liaison on behalf of Agency. Only those costs allowable under Title 23 CFR part 140 subpart I, and Title 23 part 646 subpart B shall be included in the total Project costs; all other costs associated with railroad work will be at the sole expense of Agency, or others. UTILITIES 33. State or its consultant shall follow State established statutes, policies and procedures when impacts occur to privately or publicly-owned utilities. Policy, procedures and forms are available through the State Utility Liaison or State's Liaison. State or its consultant shall provide copies of all signed utility notifications, agreements and Utility Certification to the State Utility & Railroad Liaison. Only those utility relocations, which are eligible for reimbursement under the FAPG, Title 23 CFR part 645 subparts A and B, shall be included in the total Project costs; all other utility 15 STD PRO-2021 Rev. 07-08-2021 Agency/State/Metro Agreement No. 31030-02 relocations shall be at the sole expense of Agency, or others. Agency may send a written request to State, at Project expense, to arrange for utility relocations/adjustments lying within Agency jurisdiction. This request must be submitted no later than twenty-one (21) weeks prior to bid let date. Agency shall not perform any utility work on state highway right of way without first receiving written authorization from State. GRADE CHANGE LIABILITY 34.Agency, if a County, acknowledges the effect and scope of ORS 105.755 and agrees that all acts necessary to complete construction of the Project which may alter or change the grade of existing county roads are being accomplished at the direct request of the County. 35. Agency, if a City, hereby accepts responsibility for all claims for damages from grade changes. Approval of plans by State shall not subject State to liability under ORS 105.760 for change of grade. 36.Agency, if a City, by execution of the Project Agreement, gives its consent as required by ORS 373.030(2) to any and all changes of grade within the City limits, and gives its consent as required by ORS 373.050(1) to any and all closure of streets intersecting the highway, in connection with or arising out of the Project covered by the Project Agreement. MAINTENANCE RESPONSIBILITIES 37.Agency shall, at its own expense, maintain, operate, and provide power as needed upon Project completion at a minimum level that is consistent with normal depreciation and/or service demand and throughout the useful life of the Project. The useful life of the Project is defined in the Special Provisions. State may conduct periodic inspections during the life of the Project to verify that the Project is properly maintained and continues to serve the purpose for which federal funds were provided. Maintenance and power responsibilities shall survive any termination of the Project Agreement. In the event the Project will include or affect a state highway, this provision does not address maintenance of that state highway. CONTRIBUTION 38. 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 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. 16 STD PRO-2021 Rev. 07-08-2021 Agency/State/Metro Agreement No. 31030-02 39. 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. 40. 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. ALTERNATIVE DISPUTE RESOLUTION 41. The Parties shall attempt in good faith to resolve any dispute arising out of this Project 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. WORKERS' COMPENSATION COVERAGE 42.All employers, including Agency, that employ subject workers who work under this Project 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 five hundred thousand ($500,000) must be included. State and Agency shall ensure that each of its contractors complies with these requirements. LOBBYING RESTRICTIONS 43.Agency certifies by signing the Agreement that: 17 STD PRO-2021 Rev. 07-08-2021 Agency/State/Metro Agreement No. 31030-02 a) No federal appropriated funds have been paid or will be paid, by or on behalf of the undersigned, to any person for influencing or attempting to influence an officer or employee of any federal agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with the awarding of any federal contract, the making of any federal grant, the making of any federal loan, the entering into of any cooperative agreement, and the extension, continuation, renewal, amendment, or modification of any federal contract, grant, loan, or cooperative agreement. b) If any funds other than federal appropriated funds have been paid or will be paid to any person for influencing or attempting to influence an officer or employee of any federal agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with this federal contract, grant, loan, or cooperative agreement, the undersigned shall complete and submit Standard Form-LLL, "Disclosure Form to Report Lobbying," in accordance with its instructions. c) The undersigned shall require that the language of this certification be included in the award documents for all subawards at all tiers (including subgrants, and contracts and subcontracts under grants, subgrants, loans, and cooperative agreements) which exceed one hundred thousand dollars ($100,000), and that all such subrecipients shall certify and disclose accordingly. d) This certification is a material representation of fact upon which reliance was placed when this transaction was made or entered into. Submission of this certification is a prerequisite for making or entering into this transaction imposed by Title 31, USC Section 1352. e) Any person who fails to file the required certification shall be subject to a civil penalty of not less than ten thousand dollars ($10,000) and not more than one hundred thousand dollars ($100,000) for each such failure. CERTIFICATION REGARDING DEBARMENT, SUSPENSION, INELIGIBILITY, AND VOLUNTARY EXCLUSION — LOWER TIER COVERED TRANSACTIONS By signing this Agreement, Agency agrees to fulfill the responsibility imposed by 2 CFR Subpart C, including 2 CFR 180.300, 180.355, 180.360, and 180.365, regarding debarment, suspension, and other responsibility matters. For the purpose of this provision only, Agency is considered a participant in a covered transaction. Furthermore, by signing this Agreement, Agency is providing the certification for its principals required in Appendix to 2 CFR part 180— Covered Transactions. 18 STD P RO-2021 Rev. 07-08-2021