HomeMy WebLinkAboutODOT - ODOT Delivered Federal Project - Fanno Creek: SW Durham Rd - SW Bonita Rd Misc. Contracts and Agreements
No. 73000-00038775
ODOT Delivered Federal Project A156-G092921
On Behalf of City of Tigard
Project Name: Fanno Creek: SW Durham Rd -SW Bonita Rd project development
Key Number: 23253
THIS AGREEMENT("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" or "ODOT," and the City of Tigard, acting by and through its elected officials,
hereinafter referred to as "Agency," both herein referred to individually as "Party" and
collectively as "Parties."
RECITALS
1. By the authority granted in Oregon Revised Statute (ORS) 190.110, 366.572 and
366.576, state agencies may enter into cooperative agreements with counties, cities and
units of local governments for the performance of any or all functions and activities that
a party to the Agreement, its officers, or agents have the authority to perform.
2. The project area is situated between SW Durham Rd and SW Bonita Rd, both of which
are part of the city street system under the jurisdiction and control of Agency. The
project contemplates trail facilities that would be under the jurisdiction and control of
Agency.
3. Agency has agreed that State will deliver this project on behalf of the Agency.
4. The Project was selected as a part of the 2025-27 Regional Flexible Fund Allocation
(RFFA) and may include a combination of federal and local funds. "Project" is defined
under Terms of Agreement, paragraph 1 of this Agreement.
5. The Stewardship and Oversight Agreement on Project Assumption and Program
Oversight By and Between Federal Highway Administration, Oregon Division and the
State of Oregon Department of Transportation ("Stewardship Agreement") documents
the roles and responsibilities of the State with respect to project approvals and
responsibilities regarding delivery of the Federal Aid Highway Program. This includes
the State's oversight and reporting requirements related to locally administered
projects. The provisions of that agreement are hereby incorporated and included by
reference.
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, Agency and State agree to State delivering Fanno Creek: SW
Durham Rd - SW Bonita Rd project development on behalf of Agency, hereinafter
referred to as "Project." Project consists of a planning phase for Fanno Creek (Durham
Rd to Bonita Rd) project development study which will provide site analysis to prepare
K23253
Agency/State
Agreement No. 73000-00038775
for funding, easement acquisition, design, and construction for this commuter trail
segment. The location of the Project is approximately as shown on the map attached
hereto, marked "Exhibit A," and by this reference made a part hereof.
2. Agency agrees that, if State hires a consultant to design the Project, State will serve as
the lead contracting agency and contract administrator for the consultant contract
related to the work under this Agreement.
3. Project Costs and Funding.
a. The total Project cost is estimated at $1,981,600.00, which is subject to change.
Federal funds for this Project shall be limited to $1,509,705.00. Agency shall be
responsible for all remaining costs, including any non-participating costs, all costs
in excess of the federal funds, and the 10.27 percent match for all eligible costs.
Any unused Federal funds obligated to this Project will not be paid out by State and
will not be available for use by Agency for this Agreement or any other projects.
"Total Project Cost" means the estimated cost to complete the entire Project, and
includes any federal funds, state funds, local matching funds, and any other funds.
b. With the exception of Americans with Disabilities Act of 1990-related design
standards and exceptions, State shall consult with Agency on Project decisions that
impact Total Project Cost involving the application of design standards, design
exceptions, risks, schedule, and preliminary engineering charges, for work
performed on roadways, or future trails that would be, under local jurisdiction. State
will allow Agency to participate in regular meetings and will use all reasonable efforts
to obtain Agency's concurrence on plans. State shall consult with Agency prior to
making changes to Project scope, schedule, or budget. However, State may award
a construction contract up to ten (10) percent (%) over engineer's estimate without
prior approval of Agency.
c. Federal funds under this Agreement are provided under Title 23, United States
Code.
d. ODOT does not consider Agency to be a subrecipient or contractor under this
Agreement for purposes of federal funds. The Assistance Listing (AL) number for
this Project is 20.205, title Highway Planning and Construction. Agency is not
eligible to be reimuibursed for work performed under this Agreement.
e. State will submit the requests for federal funding to the Federal Highway
Administration (FHWA). The federal funding for this Project is contingent upon
approval of each funding request by FHWA. Any work performed outside the period
of performance or scope of work approved by FHWA will be considered
nonparticipating and paid for at Agency expense.
f. Agency guarantees the availability of Agency funding in an amount required to fully
fund Agency's share of the Project.
4. The term of this Agreement shall begin on the date all required signatures are obtained
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Agreement No. 73000-00038775
and shall terminate upon completion of the Project and final payment or ten (10)calendar
years following the date all required signatures are obtained, whichever is sooner.
5. Termination.
a. This Agreement may be terminated by mutual written consent of both Parties.
b. State may terminate this Agreement upon 30 days' written notice to Agency.
c. 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:
i. If Agency fails to provide services called for by this Agreement within the time
specified herein or any extension thereof.
ii. 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.
iii. If Agency fails to provide payment of its share of the cost of the Project.
iv. 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.
v. 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 if State is
prohibited from paying for such work from the planned funding source.
d. Any termination of this Agreement shall not prejudice any rights or obligations accrued
to the Parties prior to termination.
6. Americans with Disabilities Act Compliance:
a. The Parties agree that the Project, including all sidewalks, curb ramps, and
pedestrian-activated signals, will be designed according to current ODOT Highway
Design Manual standards. The Parties further agree that all Project sidewalks, curb
ramps, and pedestrian-activated signals will be designed using ODOT Standard
Drawings, and that the ODOT Design Exception process will be followed for any
sidewalk, curb ramp, or pedestrian-activated signal that cannot be designed to the
ODOT standards. The Project design will include temporary pedestrian routes
through or around any work zone. All such temporary pedestrian routes will include
directional and informational signs, comply with ODOT standards, and include
accessibility features equal to or better than the features present in the existing
pedestrian facility.
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Agency/State
Agreement No. 73000-00038775
7. State shall ensure compliance with the Cargo Preference Act and implementing
regulations (46 CFR Part 381)for use of United States-flag ocean vessels transporting
materials or equipment acquired specifically for the Project. Strict compliance is
required, including but not limited to the clauses in 46 CFR 381.7(a) and (b) which are
incorporated by reference. State shall also include this requirement in all contracts and
ensure that contractors include the requirement in their subcontracts.
8. Agency grants State the right to enter onto Agency right of way for the performance of
duties as set forth in this Agreement.
9. The Parties acknowledge and agree that State, the Oregon Secretary of State's Office,
the federal government, and their duly authorized representatives shall have access to
the books, documents, papers, and records of the Parties 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 completion of the Project and final payment.
Copies of applicable records shall be made available upon request. Payment for costs
of copies is reimbursable by the requesting party.
10.The Special and Standard Provisions attached hereto, marked Attachments 1 and 2,
respectively, are incorporated by this reference and 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 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
FHWA, hold harmless and indemnify the State for an amount equal to the funds
received under this Agreement.
12.Agency and State are the only parties to this Agreement and are the only parties entitled
to enforce its terms. Nothing in this Agreement gives, is intended to give, or shall be
construed to give or provide any benefit or right,whether directly, indirectly or otherwise,
to third persons unless such third persons are individually identified by name herein
and expressly described as intended beneficiaries of the terms of this Agreement.
13.State and Agency hereto agree that if any term or provision of this Agreement is
declared by a court of competent jurisdiction to be invalid, unenforceable, illegal or in
conflict with any law, the validity of the remaining terms and provisions shall not be
affected, and the rights and obligations of the Parties shall be construed and enforced
as if the Agreement did not contain the particular term or provision held to be invalid.
14.Notwithstanding anything in this Agreement or implied to the contrary, the rights and
obligations set out in the following paragraphs of this Agreement shall survive
Agreement expiration or termination, as well as any provisions of this Agreement that
by their context are intended to survive: Terms of Agreement Paragraphs 3.e
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Agreement No. 73000-00038775
(Funding), 5.d (Termination), 9-14, 17 (Integration, Merger; Waiver); and Attachment 2,
paragraphs 1 (Project Administration), 7, 9, 11, 13 (Finance), and 38-42 (Maintenance
and Contribution).
15.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.
16.This Agreement may be executed in several counterparts 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.
17.This Agreement and attached exhibits constitute the entire agreement between the
Parties on the subject matter hereof. In the event of conflict, the body of this Agreement
and the attached exhibits will control over Project application and documents provided
by Agency to State. 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. Notwithstanding this provision, the Parties may enter into a Right Of Way
Services Agreement in furtherance of the Project.
18.State's Contract Administrator for this Agreement is Katie Gillespie, Local Agency
Liaison, 123 NW Flanders St., Portland, OR 97209, 971-264-4290,
katie.j.gillespie(a�odot.oregon.gov 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.
19.Agency's Contract Administrator for this Agreement is Zach Morris, Senior Project
Engineer, 13125 SW Hall Boulevard, Tigard, OR 97223, 503-718-2467,
zacharym(c�tigard-or.gov 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.
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 2024-2027 Statewide Transportation Improvement Program (STIP),
(Key #23253) that was adopted by the Oregon Transportation Commission on July 13,
2023 (or subsequently by amendment to the STIP).
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Agency/State
Agreement No. 73000-00038775
City of Tigard, by and through its elected STATE OF OREGON, by and through
officials its Department of Transportation
By By RIan WINPSHEIMER(Ju13,202515:15 PDT)
Region 1 Manager
Title A4- t Cv
Date 07/03/2025
Date 1/lI
APPROVAL RECOMMENDED
LEGAL REVIEW APPROVAL(If required By N/A
in Agency's process)
State Traffic Roadway Engineer
By — Date
Date ao � APPROVED AS TO LEGAL
SUFFICIENCY
Agency Contact:
Zach Morris, Senior Project Engineer By Serena Hewitt
13125 SW Hall Boulevard Assistant Attorney General (If Over
Tigard, OR 97223 $250,000)
503-718-2467 Date via email dated 6/6/2025
zacharym(&.tigard-or.qov
State Contact:
Katie Gillespie, Local Agency Liaison
123 NW Flanders St
Portland, OR 97209
971-264-4290
katie.j.gillespieodot.oregon.gov
6
Agency/State
Agreement No. 73000-00038775
EXHIBIT A— Project Location Map
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7
Agency/State
Agreement No. 73000-00038775
ATTACHMENT NO. 1 to AGREEMENT NO. 73000-00038775
SPECIAL PROVISIONS
1. State or its consultant shall conduct all work components necessary to complete the
Project, except for those responsibilities specifically assigned to Agency in this
Agreement.
State will perform project management and oversight activities throughout the duration
of the Project. The cost of such activities will be billed to the Project.
2. State and Agency agree that the useful life of this Project is defined as 20 years.
3. 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.
4. State will purchase right of way in State's name. Upon completion of the Project, State
and Agency agree that any right of way purchased outside of State jurisdiction will be
transferred to Agency. Agency agrees to take title to the property and shall maintain
the property pursuant to this Agreement. Agency shall use the property for public road
purposes. If the property is no longer used for public road purposes, it shall revert to
State.
5. To reflect the changes made to 23 U.S.C. 102 by the Infrastructure Investment and
Jobs Act of 2021 (Public Law 117-58), Paragraph 11.b. of Attachment No. 2 Federal
Standard Provisions is deleted in its entirety.
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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 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.
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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. 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
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Agreement No. 73000-00038775
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 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
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Agreement No. 73000-00038775
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 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
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Agreement No. 73000-00038775
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 279B.270,
incorporated herein by reference and made a part hereof; Title 23 CFR parts 1.11, 140, 635, 710,
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.
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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 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
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Agreement No. 73000-00038775
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.
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:
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Agreement No. 73000-00038775
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.
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73000-00038775_Tigard signed
Final Audit Report 2025-07-03
Created: 2025-07-03(Pacific Daylight Time)
By: Aneliya SIMEONOVA(Aneliya.SIMEONOVA@odot.oregon.gov)
Status: Signed
Transaction ID: CBJCHBCAABAAVIJh5ngSGuOwo5W_n7A1fi7gnjTbCBli
"73000-00038775_Tigard signed" History
Document created by Aneliya SIMEONOVA(Aneliya.SIMEONOVA@odot.oregon.gov)
2025-07-03-1:39:52 PM PDT-IP address: 167.131.0.194
Document emailed to Rian WINDSHEIMER (Rian.M.WINDSHEIMER@odot.oregon.gov)for signature
2025-07-03-1:43:04 PM PDT
Email viewed by Rian WINDSHEIMER (Rian.M.WINDSHEIMER@odot.oregon.gov)
2025-07-03-3:15:03 PM PDT-IP address: 104.47.64.254
Document e-signed by Rian WINDSHEIMER (Rian.M.WINDSHEIMER@odot.oregon.gov)
Signature Date:2025-07-03-3:15:44 PM PDT-Time Source:server-IP address:47.44.185.170
O Agreement completed.
2025-07-03-3:15:44 PM PDT
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