ODOT - Surface Transportation Program on Main Street from 99W to Rail Corridor Misc. Contracts and Agreements
No. 25365
AMENDMENT NUMBER 01
LOCAL AGENCY AGREEMENT
SURFACE TRANSPORTATION PROGRAM — URBAN
SW Main Street: 99W to Rail Corridor
The State of Oregon, acting by and through its Department of Transportation,
hereinafter referred to as "State," and the City of Tigard, acting by and through its
elected officials, hereinafter referred to as "Agency," entered into an Agreement on
August 28, 2009. Said Agreement covers retrofitting the southern half of Main Street
which consists of widening sidewalks, the reconstruction and reconfiguration of existing
streets, the re-directing of storm water, new street lighting and landscaping
It has now been determined by State and Agency that the Agreement referenced above
shall be amended to increase funding, add contact information and add revised Attachment
No. 1 Standard Provisions. Except as expressly amended below, all other terms and
conditions of the Agreement are still in full force and effect.
ATTACHMENT NO. 1, STANDARD PROVISIONS, shall be deleted in its entirety and
replaced with the attached REVISED ATTACHMENT NO. 1, STANDARD
PROVISIONS. All references to "ATTACHMENT NO. 1, STANDARD PROVISIONS"
shall hereinafter be referred to as "REVISED ATTACHMENT NO. 1, STANDARD
PROVISIONS."
TERMS OF AGREEMENT, Paragraph 2, Page 1, which reads:
2. The Project shall be conducted as a part of the Federal-Aid Surface Transportation
Program (STP) under Title 23, United States Code. The total Project cost is estimated
at $3,040,000, which is subject to change. STP urban funds for this Project shall be
limited to $2,674,929. The Project will be financed with STP funds at the maximum
allowable federal participating amount, with Agency providing the match and any non-
participating costs, including all costs in excess of the available federal funds.
Shall be deleted in its entirety and replaced with the following:
2. The Project shall be conducted as a part of the Federal-Aid Surface Transportation
Program (STP) under Title 23, United States Code. The total Project cost is estimated
at $3,465,576, which is subject to change. STP urban funds for this Project shall be
limited to $3,100,505. The Project will be financed with STP funds at the maximum
allowable federal participating amount, with Agency providing the match and any non-
participating costs, including all costs in excess of the available federal funds.
Key No. 15600
I
Agency/State
Agreement No. 25,365-01
Insert new TERMS OF AGREEMENT, Paragraph 12 thru 13, to read as follows:
12. State's Project Manager for this Project is Michele Thom, 123 NW Flanders St.,
Portland, OR 97209, (503) 731-8279, Michele.R.THOM@odot.state.or.us, or assigned
designee upon individual's absence. State shall notify the other Party in writing of any
contact information changes during the term of this Agreement.
13, Agency's Project Manager for this Project is Kim McMillan, 13125 SW Hall Blvd.,
Tigard, OR 97223, (503) 718-2642, kim@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.
TERMS OF AGREEMENT, Paragraphs 12 through 13, shall be hereinafter re-
numbered as Paragraphs 14 through 15.
This Amendment may be executed in several counterparts (facsimile or otherwise) all of
which when taken together shall constitute one agreement binding on all Parties,
notwithstanding that all Parties are not signatories to the same counterpart. Each copy of
this Amendment so executed shall constitute an original.
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 2012-2015 Statewide Transportation Improvement Program, (Key
#15600) that was adopted by the Oregon Transportation Commission on March 21, 2012
(or subsequently approved by amendment to the STIP).
Signature page to follow
2
Agency/State
Agreement No. 26,365-01
CITY OF TIGARD, by and through its STATE. OF OREGON, by and through
electe4 official
By its De.7t Ig Transportation
Highway Division
By Administrator
Mayor orI Ile puty-DiFector,-Hiahways-
0 13 Date
By
wfi'e /4 Aa._(Kci APPR L RECOMMENDED
'Ujo.
Recorder By
�Date— Technical Services Managed
I 2 Chief Engineer
APPROVED AS TO LEGAL
SUF�F"CIENC
Y Date
y x2
City Attorney By
Region I Manager
Da D 13
Date N)VI Z
Agency Contact: APPROVED AS TO LEGAL
Kim McMillan SUFF CY
13125 SW Hall Blvd.
IPIEN
Tigard, OR 97223 B
503-718-2642 Assistant Attorney General
klm@tigard-or.gov
Da
State-contact- ,
Date:
Michele Thom
123 NW Flanders
Portland, Oregon 97209
503-731-8279
Michele.R.THOM@odot.state.or.us
3
Agency/State
Agreement No. 25,365-01
REVISED ATTACHMENT NO. 1 to Agreement No. 25,365
SPECIAL PROVISIONS
1. Agency or its consultant shall, as a federal-aid participating preliminary engineering
function, conduct the necessary field surveys, environmental studies, traffic
investigations, foundation explorations, and hydraulic studies, identify and obtain all
required permits, assist State with acquisition of necessary right of way and/or
easements, and perform all preliminary engineering and design work required to
produce final plans, preliminarynal specifications and cost estimates.
2. Upon State's award of the construction contract, Agency, or its consultant, shall be
responsible to perform all construction engineering, field testing of materials, technical
inspection and project manager services for administration of the contract.
3. State may make available Region 1's On-Call Preliminary Engineering (PE), Design
and Construction Engineering Services consultant for Local Agency Projects upon
written request. If Agency chooses to use said services, Agency agrees to manage
the work performed by the consultant and make funds available to the State for
payment of those services. All eligible work will be a federally participating cost and
included as part of the total cost of the Project.
4. Indemnification language in the Standards Provisions, Paragraphs 45 and 46; and
Paragraph 4 in regards to tort claims, shall be replaced with the following language:
a. 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.
b. 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
4
Agency/State
Agreement No. 25,365-01
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.
c. 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.
d. The Parties shall attempt in good faith to resolve any dispute arising out of this
Agreement. In addition, the Parties may agree to utilize a jointly selected mediator
or arbitrator(for non-binding arbitration) to resolve the dispute short of litigation.
5. Agency shall, at its own expense, maintain and operate the Project upon completion at
a minimum level that is consistent with normal depreciation and/or service demand.
B. Agency shall,-.upon completion of the Project, maintain and supply power for Project
illumination at its own expense.
7. Maintenance responsibilities will survive any termination of this Agreement.
5
Misc. Contract & Agreement
No. 25,365
LOCAL AGENCY AGREEMENT
SURFACE TRANSPORTATION PROGRAM — URBAN
SW Main Street: 99W to Rail Corridor
THIS AGREEMENT is made and entered into by and between the STATE OF OREGON,
acting by and through its Department of Transportation, hereinafter referred to as "State,"
and the CITY OF TIGARD, acting by and through its elected officials, hereinafter referred
to as "Agency," hereinafter individually referred to as the "Party" or collectively referred to
as the "Parties."
RECITALS
1. SW Main Street is a part of the city street system under the jurisdiction and control
of Agency.
2. By the authority granted in Oregon Revised Statutes (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 work on certain types of
improvement projects with the allocation of costs on terms and conditions mutually
agreeable to the contracting parties.
NOW THEREFORE, the premises being in general as stated in the foregoing Recitals,
it is agreed by and between the Parties hereto as follows:
TERMS OF AGREEMENT
1. Under such authority, State and Agency agree to retrofit the southern half of Main
Street that will include widening sidewalks, the reconstruction and reconfiguration of
existing streets, re-direct storm water, new street lighting and landscaping,
hereinafter referred to .as "Project." The location of the Project is approximately as
shown on the detailed map attached hereto, marked "Exhibit A," and by this reference
made a part hereof.
2. The Project shall be conducted as a part of the Federal-Aid Surface Transportation
Program (STP) under Title 23, United States Code. The total Project cost is
estimated at $3,040,000, which is subject to change. STP urban funds for this
Project shall be limited to $2,674,929. The Project will be financed with STP funds at
the maximum allowable federal participating amount, with Agency providing the
match and any non-participating costs, including all costs in excess of the available
federal funds.
Key No. 15600
State/City of Tigard
Agreement No. 25,365
3. The federal funding for this Project is contingent upon approval by the FHWA. Any
work performed prior to acceptance by FHWA or outside the scope of work will be
considered nonparticipating and paid for at Agency expense.
4. State considers Agency a sub-recipient of the federal funds it receives as
reimbursement under this Agreement. The Catalog of Federal Domestic Assistance
(CFDA) title and number for this Project is Highway Planning and Construction,
20.205.
5. The term of this Agreement will begin upon execution and will terminate upon
completion of the Project and final payment or ten (10) calendar years following the
date of final execution, whichever is sooner.
6. This Agreement may be terminated by mutual written consent of both Parties.
7. State may terminate this Agreement effective upon delivery of written notice to
Agency, or at such later date as may be established by State, under any of the
following conditions:
a. If Agency fails to provide services called for by this Agreement within
the time specified herein or any extension thereof.
b. If Agency fails to perform any of the other provisions of this
Agreement, or so fails to pursue the work as to endanger
performance of this Agreement in accordance with its terms, and
after receipt of written notice from State fails to correct such failures
within ten (10) days or such longer period as State may authorize.
C. If Agency fails to provide payment of its share of the cost of the
Project.
d. If State fails to receive funding, appropriations, limitations or other
expenditure authority sufficient to allow State, in the exercise of its
reasonable administrative discretion, to continue to make payments
for performance of this Agreement.
e. If federal or state laws, regulations or guidelines are modified or
interpreted in such a way that either the work under this Agreement
is prohibited or State is prohibited from paying for such work from
the planned funding source.
8. Any termination of this Agreement shall not prejudice any rights or obligations
accrued to the Parties prior to termination.
2
State/City of Tigard
Agreement No. 25,365
9. The Special and Standard Provisions attached hereto, marked Attachments 1 and 2,
respectively, are by this reference made a part hereof. The Standard Provisions
apply to all federal-aid projects and may be modified only by the Special Provisions.
The Parties hereto mutually agree to the terms and conditions set forth in
Attachments 1 and 2. In the event of a conflict, this Agreement shall control over the
attachments, and Attachment 1 shall control over Attachment 2.
10. Agency, as a recipient of federal funds, pursuant to this Agreement with State, shall
assume sole liability for Agency's breach of any federal statutes, rules, program
requirements and grant provisions applicable to the federal funds, and shall, upon
Agency's breach of any such conditions that requires State to return funds to the
Federal Highway Administration, hold harmless and indemnify State for an amount
equal to the funds received under this Agreement; or if legal limitations apply to the
indemnification ability of Agency, the indemnification amount shall be the maximum
amount of funds available for expenditure, including any available contingency funds
or other available non-appropriated funds, up to the amount received under this
Agreement.
11 . 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.
12. This Agreement may be executed in several counterparts (facsimile or otherwise) all
of which when taken together shall constitute one agreement binding on all parties,
notwithstanding that all parties are not signatories to the same counterpart. Each
copy of this Agreement so executed shall constitute an original.
13. This Agreement and attached exhibits constitute the entire agreement between the
parties on the subject matter hereof. There are no understandings, agreements, or
representations, oral or written, not specified herein regarding this Agreement. No
waiver, consent, modification or change of terms of this Agreement shall bind either
party unless in writing and signed by both parties and all necessary approvals have
been obtained. Such waiver, consent, modification or change, if made, shall be
effective only in the specific instance and for the specific purpose given. The failure
of State to enforce any provision of this Agreement shall not constitute a waiver by
State of that or any other provision.
THE PARTIES, by execution of this Agreement, hereby acknowledge that each Party
has read this Agreement, understands it, and agrees to be bound by its terms and
conditions.
3
State/City of Tigard
Agreement No. 25,365
This Project is in the 2008-2011 Statewide Transportation Improvement Program, (Key
#15600) that was approved by the Oregon Transportation Commission on November
14, 2007.
The Oregon Transportation Commission on December 29, 2008, approved Delegation
Order No. 2, which authorizes the Director to approve and execute agreements for day-
to-day operations when the work is related to a project included in the Statewide
Transportation Improvement Program or a line item in the biennial budget approved by
the Commission.
On September 15, 2006, the Director of the Oregon Department of Transportation
approved Subdelegation Order No. 2, Paragraph 1, in which authority is delegated to
the Deputy Director, Highways; Deputy Director, Central Services and the Chief of Staff,
to approve and sign agreements over $75,000 when the work is related to a project
included in the Statewide Transportation Improvement Program.
Signature page to follow.
4
I
State/City of Tigard
Agreement No. 25,365
CITY OF TIGARD, by and through its STATE OF OREGON, by and through
elected of ' ials its Depa ment of Transportation
By 13V ,
Mayor �T Deputy Director, Highways
DateAt C'L ,5- l f c C7L Date
By % g, a 4 APP VAL RECOMMENDED
Recorder
By �
Date - - Q00?
Technical Services Manager/Chief
Engineer
APPROVED AS TO LEGAL
SU F ICIENCY Date d�>
l2)?-yn
y V
City Attorney By —
Date. L '' l.s'f�
.I- 1 -Do oct
Re n 1 Manager
J- iDate
Agency Contact:
Kim McMillan APPROVED AS TO LEGAL
13125 SW Hall Blvd. SUFFIC CY
Tigard, OR 97223
503-718-2643 By
kim@tigard-or.gov Assistant Attorney General
State Contact: Date: 2 74�1
Michele Thom
123 NW Flanders
Portland, Oregon 97209
503-731-8279
Michele.R.THOM@odot.state.or.us
5
Exhibit A
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ATTACHMENT NO. 1 to Agreement No. 25,365
SPECIAL PROVISIONS
1. Agency or its consultant shall, as a federal-aid participating preliminary engineering
function, conduct the necessary field surveys, environmental studies, traffic
investigations, foundation explorations, and hydraulic studies, identify and obtain all
required permits, assist State with acquisition of necessary right of way and/or
easements, and perform all preliminary engineering and design work required to
produce final plans, preliminary/final specifications and cost estimates.
2. Upon State's award of the construction contract, Agency, or its consultant, shall be
responsible to perform all construction engineering, field testing of materials,
technical inspection and project manager services for administration of the contract.
3. In the event that Agency elects to engage the services of a personal services
consultant to perform any work covered under this Agreement, Agency and
Consultant shall enter into a Personal Services Contract approved by State's Office
of Procurement Manager or designee (Salem). Said contract must be reviewed and
approved by the Office of Procurement Manager or designee prior to beginning any
work. This review includes, but is not limited to the Request for Proposal, Statement
of Work, advertisement and all contract documents. This review and approval is
required to ensure federal reimbursement.
4. State may make available Region 1's On-Call Preliminary Engineering (PE), Design
and Construction Engineering Services consultant for Local Agency Projects upon
written request. If Agency chooses to use said services, Agency agrees to manage
the work performed by the consultant and make funds available to the State for
payment of those services. All eligible work shall be a federally participating cost
and included as part of the total cost of the Project.
5. Agency shall, at its own expense, maintain, operate and supply power for Project '
illumination for the Project at a minimum level that is consistent with normal
depreciation and/or service demand.
6. Maintenance responsibilities shall survive any termination of this Agreement.
ATTACHMENT NO. 2
STANDARD PROVISIONS
JOINT OBLIGATIONS
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 further act for Agency in other matters
pertaining to the Project. Agency shall, if necessary, appoint and direct the activities of a
Citizen's Advisory Committee and/or Technical Advisory Committee, conduct a hearing and
recommend the preferred alternative. State and Agency shall each assign a liaison person
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.
PRELIMINARY & CONSTRUCTION ENGINEERING
3. State, Agency, or others may perform preliminary and construction engineering. If Agency
or others perform the engineering, State will monitor the work for conformance with FHWA
rules and regulations. In the event that Agency elects to engage the services of a personal
services consultant to perform any work covered by this Agreement, Agency and Consultant
shall enter into a State reviewed and approved personal services contract process and
resulting contract document. State must concur in the contract prior to beginning any work.
State's personal services contracting process and resulting contract document will follow
Title 23 Code of Federal Regulations (CFR) 172, Title 49 CFR 18, ORS 279A.055, the
current State Administrative Rules and State Personal,Services Contracting Procedures 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. Subcontracts
shall contain all required provisions of Agency as outlined in the Agreement. No
reimbursement shall be made using federal-aid funds for any costs incurred by Agency or
its consultant prior to receiving authorization from State to proceed. Any amendments to
such contract(s) also require State's approval.
4. On all construction projects where State is the signatory party to the contract, and where
Agency is doing the construction engineering and project management, Agency, °subject to
any limitations imposed by state law and the Oregon Constitution, agrees to accept all
responsibility, defend lawsuits, indemnify and hold State harmless, for all tort claims,
contract claims, or any other lawsuit arising out of the contractor's work or Agency's
supervision of the project.
STDPRO-2008.doe
Rev. 09-23-2008
REQUIRED STATEMENT FOR UNITED STATES DEPARTMENT OF
TRANSPORTATION (USDOT) FINANCIAL ASSISTANCE AGREEMENT
5. If as a condition of assistance, Agency has submitted and the United States Department of
Transportation (USDOT) has approved a Disadvantaged Business Enterprise Affirmative
Action Program which Agency agrees to carry out, this affirmative action program is
incorporated into the financial assistance agreement by reference. That program shall be
treated as a legal obligation and failure to carry out its terms shall be treated as a violation
of the financial assistance agreement. Upon notification from USDOT to Agency of its
failure to carry out the approved program, USDOT shall impose such sanctions as noted in
Title 49, CFR, Part 26, which sanctions may include termination of the agreement or other
measures that may affect the ability of Agency to obtain future USDOT financial assistance.
6. Disadvantaged Business Enterprises (DBE) Obligations. State and its contractor agree
to ensure that DBE as defined in Title 49, CFR, Part 26, have the opportunity to participate
in the performance of contracts and subcontracts financed in whole or in part with federal
funds. In this regard, Agency shall take all necessary and reasonable steps in
accordance with Title 49, CFR, Part 26, to , ensure that DBE have the opportunity to
compete for and perform contracts. Neither State nor Agency and its contractors shall
discriminate on the basis of race, color, national origin or sex in the award and performance
of federally-assisted contracts. Agency shall carry out applicable requirements of Title 49,
CFR, Part 26, in the award and administration of such contracts. Failure by Agency to carry
out these requirements is a material breach of this Agreement, which may result in the
termination of this contract or such other remedy as State deems appropriate.
7. The DBE Policy Statement and Obligations shall be included in all subcontracts entered into
under this Agreement.
8. Agency agrees 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.
9. 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 1.11 140 710 and 771: Title 49 CFR Parts 18, 24 and 26; OMB CIRCULAR
NO. A-87 and NO. A-133 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 and provisions of Federal-Aid Policy Guide
FAPG .
STATE OBLIGATIONS
PROJECT FUNDING REQUEST
10. State shall submit a Project funding request to FHWA with a request for approval of federal-
aid participation in all engineering, right-of-way acquisition, eligible utility relocations and/or
construction work for the Project. No work shall proceed on any activity in which
federal-aid participation is desired until such approval has been obtained. The
program shall include services to be provided by State, Agency, or others. State shall notify
STDPRO-2008,doc 2
Rev. 09-13-2008
Agency in writing when authorization to proceed has been received from FHWA. Major
responsibility for the various phases of the Project will be as outlined in the Special
Provisions. All work and records of such work shall be in conformance with FHWA rules
and regulations.
FINANCE
11. State shall, in the first instance, pay all reimbursable costs of the Project, submit all claims
for federal-aid participation to FHWA in the normal manner and compile accurate cost
accounting records. Agency may request a statement of costs to date at any time by
submitting a written request. When the actual total cost of the Project has been computed,
State shall furnish Agency with an itemized statement of final costs. Agency shall pay an
amount which, when added to said advance deposit and federal reimbursement payment,
will equal 100 percent of the final total actual cost. Any portion of deposits made in excess
of the final total costs of 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 total cost of the Project.
PROJECT ACTIVITIES
12. State shall, if the preliminary engineering work is performed by Agency or others, review
and process or approve all environmental statements, preliminary and final plans,
specifications and cost estimates. State shall, if they prepare these documents, offer
Agency the opportunity to review and approve the documents prior to advertising for bids.
13. The party 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.
14. State shall prepare contract and bidding documents, advertise for bid proposals, and award
all contracts.
15. Upon State's award of a construction contract, State shall perform independent,assurance
testing in accordance with State and FHWA Standards, 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.
16. State shall, as a Project expense, assign a liaison person to provide Project monitoring as
needed throughout all phases of Project activities (preliminary engineering, right-of-way
acquisition, and construction). The liaison shall process reimbursement for federal
participation costs.
RIGHT OF WAY
17. State is responsible for proper acquisition of the necessary right of way and easements for
construction and maintenance of the Project. Agency may perform acquisition of the
necessary right of way and easements for construction and maintenance of the Project,
provided Agency (or Agency's consultant) are qualified to do such work as required by the
State's Right of Way Manual and have obtained prior approval from State's Region Right of
Way office to do such work.
STDPRO-2008.doe 3
Rev. 09-23-2008
18. Regardless of who acquires or performs any of the right of way activities, a right of way
services agreement shall be created by State's Region Right of Way office setting forth the
responsibilities and activities to be accomplished by each party. State shall always be
responsible for requesting project funding, coordinating certification of the right of way, and
providing oversight and monitoring. Funding authorization requests for federal right of way
funds must be sent through the State's Region Right of Way offices on all projects. All
projects must have right of way certification coordinated through State's Region Right of
Way offices (even for projects where no federal funds were used for right of way, but
federal funds were used elsewhere on the Project). Agency should contact the State's
Region Right of Way office for additional information or clarification.
19. State shall review all right of way activities engaged in by Agency to assure compliance with
applicable laws and regulations. Agency agrees that right of way activities shall be in
accord with the Uniform Relocation Assistance & Real Property Acquisition Policies Act of
1970, as amended, ORS Chapter 35, FHWA Federal-Aid Policy Guide, State's Right of
Way Manual and the Code of Federal Regulations, Title 23, Part 710 and Title 49, Part 24.
20. If any real property purchased with federal-aid participation is no longer needed for the
originally authorized purpose, the disposition of such property shall be subject to applicable
rules and regulations, which are in effect at the time of disposition. Reimbursement to State
and FHWA of the required proportionate shares of the fair market value may be required.
21. Agency insures that all Project right of way monumentation will be conducted in
conformance with ORS 209.155.
22. State and Agency grants each other authority to enter onto the other's right of way for the
performance of the Project.
AGENCY OBLIGATIONS
FINANCE
23. 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, unless otherwise agreed to and specified in the, intergovernmental
agreement. If federal funds are used, Agency will specify the Catalog of Federal Domestic
Assistance (CFDA) number in the Agreement. Agency will also determine and clearly state
in the Agreement if recipient is a subrecipient or vendor, using criteria in Circular A-133.
24. 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 110 percent of Agency's share of the
engineer's estimate and shall be received prior to award of the construction contract.
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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 canceled. Any unnecessary balance of a cash deposit, 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 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
the Highway Finance Office), or 2) an Irrevocable Letter of Credit issued by a local bank
in the name of State, or 3) cash.
D. Agency may satisfy all or part of any matching funds requirements by use, of in-kind
contributions rather than cash when prior written approval has been given by State.
25. 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 also pay 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 that
Agency may be withheld to pay the non-participating costs. If State approves processes,
procedures, or contract administration outside the Local Agency Guidelines that result in
items being declared non-participating, those items will not result in the withholding of
Agency's future allocations of federal funds or the future allocations of State Highway Trust
Funds.
26. 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.
27. If Agency makes a written request for the cancellation of a federal-aid project; Agency shall
bear 100 percent of all costs as of the date of cancellation. If State was the sole cause of
the cancellation, State shall bear 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 development 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.
28. Agency shall follow requirements of the Single Audit Act. The requirements stated in the
Single Audit Act must be followed by those local governments and non-profit organizations
receiving $500,000 or more in federal funds. The Single Audit Act of 1984, PL 98-502 as
amended by PL 104-156, described in "OMB CIRCULAR NO. A-133", requires local
governments and non-profit organizations to obtain an audit that includes internal controls
and compliance with federal laws and regulations of all federally-funded programs in which
the local agency participates. The cost of this audit can be partially prorated to the federal
program.
29. 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.
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30. Agency shall present invoices for 100 percent of actual costs incurred by Agency on behalf
of the Project directly to State's Liaison Person for review and approval. Such invoices shall
identify the Project and Agreement number, and shall itemize and explain all expenses for
which reimbursement is claimed. Billings shall be presented for periods of not less than
one-month duration, based on actual expenses to date. All billings received from Agency
must be approved by State's Liaison Person prior to payment. Agency's actual costs
eligible for federal-aid or State participation shall be those allowable under the provisions of
Title 23 CFR Parts 1.11, 140 and 710, Final billings shall be submitted to State for
processing within three months from the end of each funding phase as follows: 1) award
date of a construction contract for preliminary engineering 2) last payment for right-of-way
acquisition and 3) third notification for construction. Partial billing (progress payment) shall
be submitted to State within three months from date that costs are incurred. Final billings
submitted after the three months shall not be eligible for reimbursement.
31. The cost records and accounts pertaining to work covered by this Agreement are to be kept
available for inspection by representatives of State and FHWA for a period of six (6) years
following the date of final voucher to FHWA. Copies of such records and accounts shall be
made available upon request. For real property and equipment, the retention period starts
from the date of disposition (Title 49 CFR 18.42).
32. State shall request reimbursement, and Agency agrees to reimburse State, for federal-aid
funds distributed to Agency if any of the following events occur:
a) 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
fiscal year following the fiscal year in which the federal-aid funds were
authorized;
b) Right of way acquisition is undertaken utilizing federal-aid funds and actual
construction is not started by the close of the twentieth fiscal year following
the fiscal year in which the federal-aid funds were authorized for right of way
acquisition.
c) Construction proceeds after the Project is determined to be ineligible for
federal-aid funding (e.g., no environmental approval, lacking permits, or other
reasons).
33. Agency shall 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 projects are completed in
conformance with approved plans and specifications.
RAILROADS
34. Agency shall follow State established policy and procedures when impacts occur on railroad
property. The policy and procedures are available through State's appropriate Region
contact or State's Railroad Liaison. Only those costs allowable under Title 23 CFR Part 646,
subpart B and Title 23 CFR Part 140, subpart I, shall be included in the total Project costs;
all other costs associated with railroad work will be at the sole expense of Agency, or
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others. Agency may request State, in writing, to provide railroad coordination and
negotiations. However, State is under no obligation to agree to perform said duties.
UTILITIES
35. Agency shall cause to be relocated or reconstructed, all privately or publicly-owned utility
conduits, lines, poles, mains, pipes, and all other such facilities of every kind and nature
where such relocation or reconstruction is made necessary by the plans of the Project in
order to conform the utilities and other facilities with the plans and the ultimate requirements
of the Project. Only those utility relocations, which are eligible for federal-aid participation
under, Title 23 CFR 645A, shall be included in the total Project costs; all other utility
relocations shall be at the sole expense of Agency, or others. State will arrange for utility
relocations/adjustments in areas lying within jurisdiction of State, if State is performing the
preliminary engineering. Agency may request State in writing to arrange for utility
relocations/adjustments lying within Agency jurisdiction, acting on behalf of Agency. This
request must be submitted no later than twenty-one (21) weeks prior to bid let date.
However, State is under no obligation to agree to perform said duties.
36. Agency shall follow established State utility relocation policy and procedures. The policy and
procedures are available through the appropriate State's Region Utility Specialist or State's
Right of Way Section Railroad Liaison, and Utility Engineer.
STANDARDS
37. Agency agrees that design standards for all projects on the National Highway System
(NHS) and the Oregon State Highway System shall be in compliance to standards specified
in the current "State Highway Design Manual" and related references. Construction plans
shall be in conformance with standard practices of State for plans prepared by its own staff.
All specifications for the Project shall be in substantial compliance with the most current
"Oregon Standard Specifications for Highway Construction".
38. Agency agrees that minimum design standards for non-NHS projects shall be
recommended AASHTO Standards and in accordance with the current "Oregon Bicycle and
Pedestrian Plan", unless otherwise requested by Agency and approved by State.
39. Agency agrees and will verify that the installation-of traffic control devices shall meet the
warrants prescribed in the "Manual on Uniform Traffic Control Devices and Oregon
Supplements".
40. All plans and specifications shall be developed in general conformance with the current
"Contract Plans Development Guide" and the current "Oregon Standard Specifications for
Highway Construction" and/or guidelines provided.
41. The standard unit of measurement for all aspects of the project shall be English Units. All
project documents and products shall be in English. This includes, but is not limited to, right
of way, environmental documents, plans and specifications, and utilities.
GRADE CHANGE LIABILITY
42. 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.
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43. 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.
44: Agency, if a City, by execution of 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, if any
there be in connection with or arising out of the project covered by the Agreement.
CONTRACTOR-CLAIMS
45. Agency shall, to the extent permitted by state law, indemnify, hold harmless and provide
legal defense for State against all claims brought by the contractor, or others resulting from
Agency's failure to comply with the terms of this Agreement.
46. Notwithstanding the foregoing defense obligations under Paragraph 45, neither Agency nor
any attorney engaged by Agency shall defend any claim in the name of the State of Oregon
or any agency of the State of Oregon, nor purport to act as legal representative of the State
of Oregon or any of its agencies, without the prior written consent of the Oregon Attorney
General. The State of Oregon may, at anytime at its election assume its own defense and
settlement in the event that it determines that Agency is prohibited from defending the State
of Oregon, or that Agency is not adequately defending the State of Oregon's interests, or
that an important governmental principle is at issue or that it is in the best interests of the
State of Oregon to do so. The State of Oregon reserves all rights to pursue any claims it
may have against Agency if the State of Oregon elects to assume its own defense.
MAINTENANCE RESPONSIBILITIES
47. Agency shall, upon completion of construction, thereafter maintain and operate the Project
at its own cost and expense, and in a manner satisfactory to State and FHWA.
WORKERS' COMPENSATION COVERAGE
48. All employers, including Agency that employ subject workers who work under this
Agreement in the State of Oregon shall comply with ORS 656.017 and provide the required
Workers' Compensation coverage unless such employers are exempt under ORS 656.126.
Agency shall ensure that each of its contractors complies with these requirements.
LOBBYING RESTRICTIONS
49. Agency certifies by signing the Agreement that:
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.
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1
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 $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 $10,000 and not more than $100,000 for each such failure.
Paragraphs 35, 36, and 47 are not applicable to any local agency on state highway projects.
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