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State of Oregon -Congestion Mitigation & Air Quality Program (IG166007) 6? / 7 71005 Misc. Contracts and Agreements No. 31030 AMENDMENT NUMBER 01 LOCAL AGENCY AGREEMENT CONGESTION MITIGATION AND AIR QUALITY PROGRAM Fanno Creek Trail: Woodard Park-Bonita Rd/85th Ave-Tualatin Br. This is Amendment No. 01 to the Agreement between the State of Oregon, acting by and through its Department of Transportation, hereinafter referred to as "State," and the Portland Urbanized Area Metropolitan Planning Organization, acting by and through its elected officials, hereinafter referred to as "Metro," and the CITY OF TIGARD, acting by and through its elected officials, hereinafter referred to as "Agency," entered into on October 10, 2016. It has now been determined by State and Metro and Agency that the Agreement referenced above shall be amended to extend all milestones, adjust funding amounts to match revised MTIP, shift CMAQ funds from Tigard's Main Street Green Street Project to this Project, update language, update State's Project Manager, and update Metro's Contact for this Project. 1. Effective Date. This Amendment shall become effective on the date it is fully executed and approved as required by applicable law. 2. Amendment to Agreement. Terms of Agreement, Paragraph 2, Page 2, which reads: 2. This Project shall be conducted as a part of the Congestion Mitigation and Air Quality (CMAQ) Program under Title 23, United States Code. The total Project cost is estimated at $4,847,877, which is subject to change. The CMAQ funds are limited to $4,350,000. The Project will be financed with CMAQ funds at the maximum allowable federal participating amount, which is 89.73 percent, with Agency providing the 10.27 percent match for eligible costs and paying for any non-participating costs, including all costs in excess of the available federal funds. Agency is not guaranteed the use of unspent funds. Moving funds between phases requires the approval of State's CMAQ Program Manager. Shall be deleted in its entirety and replaced with the following: 2. The total Project cost is estimated at $4,905,187, which is subject to change. The federal funds are limited to $4,401,424. The Project will be financed with federal funds at the maximum allowable federal participating amount, which is 89.73 percent, with Agency providing the 10.27 percent match for eligible costs and paying for any non-participating costs, including all costs in excess of the available federal funds. Agency is not guaranteed the use of unspent funds. Moving funds between phases requires the approval of State's CMAQ Program Manager. Key No. 19327 Agency/State/Metro Agreement No. 31030-01 Insert new TERMS OF AGREEMENT, Paragraph 25, 26, 27, and 28 to read as follows: 25. When the Project scope includes work on sidewalks, curb ramps, or pedestrian-activated signals or triggers an obligation to address curb ramps or pedestrian signals, shared use path, the Parties shall: a. Utilize ODOT standards to assess and ensure Project compliance with the Americans with Disabilities Act of 1990 (ADA), including ensuring that all sidewalks, curb ramps, and pedestrian-activated signals meet current ODOT Highway Design Manual standards; b. Follow ODOT's processes for design, modification, upgrade, or construction of sidewalks, curb ramps, and pedestrian-activated signals, including using the ODOT Highway Design Manual, ODOT Design Exception process, ODOT Standard Drawings, ODOT Construction Specifications, providing a temporary pedestrian accessible route plan and current ODOT Curb Ramp Inspection form; c. At Project completion, send an ODOT Curb Ramp Inspection Form 734- 5020 to the address on the form as well as to State's Project Manager for each curb ramp constructed, modified, upgraded, or improved as part of the Project. The completed form is the documentation required to show that each curb ramp meets ODOT standards and is ADA compliant. ODOT's fillable Curb Ramp Inspection Form and instructions are available at the following address: http://www.oregon.gov/ODOT/HWY/CONSTRUCTION/Pages/HwyConstF ormsl.aspx; 26. Agency shall, at its own expense, maintain and periodically inspect any sidewalks, curb ramps, and pedestrian-activated signals on portions of the Project under Agency's maintenance jurisdiction upon Project completion and throughout the useful life of the Project to ensure continuing compliance with the ADA. This provision shall survive termination of this Agreement. 27. Agency 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 and Agency shall also include this requirement in all contracts and ensure that contractors include the requirement in their subcontracts. 28. By signing this Federal-Aid Agreement Agency agrees to comply with the provisions of the Federal Funding Accountability and Transparency Act (FFATA) and is subject to the following award terms: http://edocket.access.gpo.gov/2010/pdf/2010-22705.pdf and http://edocket.access.gpo.gov/2010/pdf/2010-22706.pdf. If, in the preceding fiscal year, Agency received more than eighty (80%) of its gross revenues 2 Agency/State/Metro Agreement No. 31030-01 from the federal government, those federal funds exceed $25,000,000 annually, and the public does not have access to information about the compensation of executives through reports filed under section 13(a) or 15(d) of the Securities Exchange Act of 1934 or section 6104 of the Internal Revenue Code of 1986, Agency shall report the total compensation and names of its top five executives to State. Agency shall report said information to State within fourteen (14) calendar days of execution of this Agreement and annually thereafter, utilizing the FFATA form attached hereto as Exhibit "ID". EXHIBIT B, Paragraph 1, Page 10, which reads: 1. F!roiect Description The Project includes design and construction of four segments of shared-use path that are part of the regional Fanno Creek Trail system. A 12 foot wide paved path with structures is assumed for all four segments unless State determines that conditions such as environmental constraints justify a narrower section in a specific area. Path width will include a minimum one-foot shy distance along all structures with railings and in all areas with an adjacent vertical barrier. A one foot shoulder on either side of the trail will be required where no structures exist. Shall be deleted in its entirety and replaced with the following: 1. Project Description The Project includes design and construction of four segments of shared-use path that are part of the regional Fanno Creek Trail system. A 12 foot wide paved path with shoulders and structures is assumed for all four segments unless State determines that conditions such as environmental constraints justify a narrower section in a specific area. Path width will include a minimum one-foot shy distance along all structures with railings and in all areas with an adjacent vertical barrier. EXHIBIT B, Paragraph 4, Page 10, which reads: 4. Project Milestones — The Parties agree that the dates shown in Table 1 constitute the intended schedule for advancing and completing the Project. Project Milestones may only be changed through amendment of this Agreement, after obtaining an approved Project Change Request. Table 1: Proiect Milestones Milestone Description Completion Date 3 Agency/State/Metro Agreement No. 31030-01 1 Obligation (Federal Authorization) of Federal funds for the December 31, 2016 Preliminary Engineering phase of the Project 2 Obligation (Federal Authorization) of Federal Funds for the September 30, 2017 Right of Way phase of the Pro'ect if needed 3 Obligation (Federal Authorization)of Federal for the February 28, 2019 Construction phase of the Project Shall be deleted in its entirety and replaced with the following: 4. Project Milestones — The Parties agree that the dates shown in Table 1 constitute the intended schedule for advancing and completing the Project. Project Milestones may only be changed through amendment of this Agreement, after obtaining an approved Project Change Request. Table 1: Project Milestones Milestone Description Completion Date 1 Obligation (Federal Authorization)of Federal funds for the December 31, 2017 Preliminary Engineering phase of the Project 2 Obligation (Federal Authorization)of Federal Funds for the December 31, 2018 Right of Way phase of the Project(if needed) 3 Obligation (Federal Authorization)of Federal for the December 31, 2019 Construction phase of the Project ATTACHMENT NO. 1, FEDERAL STANDARD PROVISIONS on page 15 shall be amended to read ATTACHMENT NO. 2, FEDERAL STANDARD PROVISIONS Terms of Agreement, Paragraph 22, Page 5, which reads: 22.State's Project Manager for the Agreement is Michele Thom, Local Liaison, 123 NW Flanders, Portland, OR 97209, 503-731-8279, Michele.r.tliom(cZodot.state.or.us or assigned designee upon absence. State shall notify the other Parties in writing of any contact information changes during the term of this Agreement. Shall be deleted in its entirety and replaced with the following: 22. State's Project Manager for the Agreement is Justin Shoemaker, R1 Local Agency Liaison, 123 NW Flanders Street, Portland, Oregon 97209, (503) 731- 8486, Tustin.d.shoemaker@odot.state.or.us, or assigned designee upon absence. State shall notify the other Parties in writing of any contact information changes during the term of this Agreement. Terms of Agreement, Paragraph 24, Page 5, which reads: 4 Agency/State/Metro Agreement No. 31030-01 24. Metro's Contact for this Project is Robert Spurlock, Senior Regional Planner, 600 NE Grand Ave, Portland, OR, 97232, (503) 813-7560, Robe rt.Spuriock(a-)oregonmetro.gov, or assigned designee upon individual's absence. Agency shall notify the other Parties in writing of any contact information changes during the term of this Agreement. Shall be deleted in its entirety and replaced with the following: 24. Metro's Contact for this Project is Olena Turula, Senior Regional Planner, 600 NE Grand Ave, Portland, OR, 97232, (503)813-7542, Olena.Turula amore_qonmetro.gov, or assigned designee upon individual's absence. Agency shall notify the other Parties in writing of any contact information changes during the term of this Agreement. Insert new Exhibit D, Federal Funding Accountability and Transparency Act (FFATA) Subaward Reporting 3. Counterparts. This Amendment may be executed in two or more counterparts (by facsimile or otherwise) each of which is an original and all of which when taken together are deemed one agreement binding on all Parties, notwithstanding that all Parties are not signatories to the same counterpart. 4. Original Agreement. Except as expressly amended above, all other terms and conditions of the original Agreement are still in full force and effect. Agency certifies that the representations, warranties and certifications in the original Agreement are true and correct as of the effective date of this Amendment and with the same effect as though made at the time of this Amendment. 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 2015-2018 Statewide Transportation Improvement Program (STIP), (Key #19327) that was adopted by the Oregon Transportation Commission on December 18, 2014 (or subsequently approved by amendment to the STIP). SIGNATURE PAGE TO FOLLOW 5 Agency/State/Metro Agreement No. 31030-01 -C-tT-1-OF-TtGARD--by and-througl,-its v-T-ATE-OF OREGON, elected officials,,-'I its Department of Transportation By By Mayor ;J ,� Highway Division Administrator Date Date LEGAL REVIEW APPROVAL (If required in Agency's process) APPROVAL RECOMMENDED By 1 i' By City AttorrieV Region 1, Manager Date�,��'� i `�- Date CMAQ Program Manager or Agency Contact: Active Transportation Section Manager Mike McCarthy, Project Manager 13125 SW Hall Blvd By Tigard, OR 97223 Region 1 Project Services Manager 503-718-2462 mikem(a)tigard-or.gov Date METRO, by and through its elected APPROVED AS TO LEGAL officials SUFFICIENCY By B Assistant Attorney General Date 4z/, Date: LEGAL REVIEW APPROVAL (If required in Agency' process) State Contact: Justin Shoemaker, Local Agency Liaison By i� 123 NW Flanders City Attorn Portland, OR 97209 ll _ 503-731-8486 Date �J LAy'1,L i � � Z � � � Justin.d.shoemakerpqodot.state.cr.us Metro Contact: Olena Turula, Senior Regional Planner 600 NE Grand Ave Portland, OR 97232 503-813-7560 Olena.Turula@oregonmetro.gov 6 State/Metro/Agency Agreement No, 31030-01 Exhibit D Federal Funding Accountability and Transparency Act (FFATA) Subaward Reporting (For purposes of this Exhibit, references to"your organization"shall mean'Agency"and references to"ODOT"shall mean"State") The Oregon Department of Transportation (ODOT) is required to fulfill a federal requirement for contracting under the Federal Funding Accountability and Transparency Act(FFATA) Subaward Reporting System (FSRS). FFATA reporting is a requirement for subawards(also known as subrecipients)of federal awards in excess of$25,000. Your organization will enter into an agreement with ODOT where the funding source is a federal grant with a subrecipient relationship. Your organization is required to submit the information below to the Oregon Department of Transportation within fourteen calendar days of execution of the Agreement and annually thereafter, if applicable. (See the following page for further details.) Legal entity name: Data Universal Number System (DUNS)number: Executive compensation Executive compensation information is also required to determine whether or not the following information must be reported in FSRS: a. In your organization's previous fiscal year, did your organization receive 80% or more of its annual gross revenue and $25,000,000 or more in federal procurement contracts, subcontracts, loans, grants, subgrants, cooperative agreements and federal financial assistance awards subject to the Transparency Act?(Include parent organization,all branches, and all affiliates worldwide.) ❑ Yes ❑ No If"yes," proceed to b. If"no," no further action is required and submittal of this form is not required. b. Does the public have access to information about the compensation of the senior executives in your organization (including parent organization, all branches, and all affiliates worldwide)through periodic reports filed under section 13(a)or 15(d)of the Securities and Exchange Act of 1934(15 U.S.C. 78m(a), 78o(d))or section 6104 of the Internal Revenue Code of 1986? ❑ Yes ❑ No If"yes," provide a link to the SEC: http://www.sec.gov where this information is located and return form to the ODOT contact shown at the bottom of this form. Provide link here: If"no," provide compensation information below Names and annual compensation amounts of the five most highly compensated executives: 1. $ 2. $ 3. $ 4. $ 5. $ Business entity contact information(person completing form): Type name Title Date Return completed form to: Jeff Flowers, Program and Funding Services Manager;Oregon Department of Transportation;555 13`"Street NE;Salem,OR 97301;Jeffrey.A.FLOWERS@odot.state.or.us 734-5075 (10-28-2016) 1 State/Metro/Agency Agreement No. 31030-01 Background on FFATA requirements The Federal Funding Accountability and Transparency Act (FFATA) was signed on September 26, 2006. The intent is of the Act is to empower every American with the ability to hold the government accountable for each spending decision. The end result is to reduce wasteful spending in the government. The FFATA legislation requires information on federal awards (federal financial assistance and expenditures) be made available to the public via a single, searchable website, which is www.USASpending.gov. Definition of compensation Your organization is considered a subrecipient of federal funds. Unless your organization is exempt, FFATA requires you to report total compensation for each of your five most highly compensated executives for the preceding completed year. Total compensation means the cash and non-cash dollar value earned by the executive during the subrecipient's preceding fiscal year and includes the following: salary and bonus; awards of stock, stock options, and stock appropriation rights; earnings for services under non-equity incentive plans; change in pension value; above-market earnings on deferred compensation which is not tax-qualified; and other compensation as defined in 2 CFR Part 170, Section 170.330(b)(5)(vi). More detailed information about the FFATA can be found at: http://edocket,access.gpo.gov/2010/pdf/2010- 22705.pdf If you have any questions, contact: Jeff Flowers Program and Funding Services Manager Oregon Department of Transportation 555 13th Street NE Salem, OR 97301 Jeffrey.A.FLOWERS@odot.state.or.us Telephone: 503-986-4453 2 Misc. Contracts and Agreements No. 31030 LOCAL AGENCY AGREEMENT CONGESTION MITIGATION AND AIR QUALITY PROGRAM Fanno Creek Trail: Woodard Park-Bonita Rd/85th Ave-Tualatin Br. 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 Portland Urbanized Area Metropolitan Planning Organization, acting by and through its elected officials, hereinafter referred to as "Metro," and the CITY OF TIGARD, acting by and through its elected officials, hereinafter referred to as "Agency," herein referred to individually or collectively as "Party" or "Parties." RECITALS 1. By the authority granted in Oregon Revised Statute (ORS) 190.110, 366.572 and 366.576, State may enter into cooperative agreements with counties, cities, and units of local governments for the performance of work on certain types of improvement projects with the allocation of costs on terms and conditions mutually agreeable to the contracting parties. 2. The Fanno Creek Trail is part of the Metro Regional trail system. It serves as the main north-south cycling and walking route in this portion of the Metro area and is the parallel cycling and walking route to Interstate 5 and OR217. The sections from Woodard Park to Bonita Road and from 85`h Avenue to the Tualatin River (Ki-a-Kuts) Bridge are under the jurisdiction of Agency. 3. A portion of this trail will be constructed on property currently owned by Metro. NOW THEREFORE the premises being in general as stated in the foregoing Recitals, it is agreed by and between the Parties hereto as follows: DEFINITIONS 1. "Contract Award" (construction projects) means the issuance of a Notice to Proceed (NTP) to the construction contractor. 2. "Contract Time" means amount of time for completing the bid item work under the contract. 3. "Establishment Period" means the time specified to assure satisfactory establishment and growth of planted materials. 4. "Final Acceptance" means written confirmation by Agency and State that the project has been completed according to the contract, with the exception of latent defects and warranty obligations, if any, and has been accepted. 5. "Final Payment' the amount of final payment will be the difference between the total amount due the contractor and the sum of all payments previously made. All prior partial estimates and payments shall be subject to correction in the final estimate and payment. 6. "Obligation" means approval of funding that allows a project to commence with spending. Key No. 19327 State/Agency/Metro Agreement No. 31030 7. "Project Close-Out" means project is ready to close as there are no more expenditures associated with project. 8. "Second Notification" means written acknowledgment by the Engineer of the end of Contract Time in accordance with ODOT Standard Specification 000180.50(g). 9. "Third Notification" written acknowledgment by the Engineer, subject to Final Acceptance, that as of the date of the notification the Contractor has completed the Project according to the Contract, including without limitation completion of all minor corrective work, Equipment and plant removal, site clean-up, and submittal of all certifications, bills, forms and documents required under the Contract. TERMS OF AGREEMENT 1. Under such authority, State, Agency and Metro agree to State constructing approximately 8,800 feet of paved shared-use path at four (4) sections of the Fanno Creek Trail, including bridges and boardwalk structures, and mitigation, hereinafter referred to as "Project." The location of the Project is approximately as shown on the map attached hereto, marked "Exhibit A — Project Location Maps 1 and 2," and by this reference made a part hereof. 2. This Project shall be conducted as a part of the Congestion Mitigation and Air Quality (CMAQ) Program under Title 23, United States Code. The total Project cost is estimated at $4,847,877, which is subject to change. The CMAQ funds are limited to $4,350,000. The Project will be financed with CMAQ funds at the maximum allowable federal participating amount, which is 89.73 percent, with Agency providing the 10.27 percent match for eligible costs and paying for any non-participating costs, including all costs in excess of the available federal funds. Agency is not guaranteed the use of unspent funds. Moving funds between phases requires the approval of State's CMAQ Program Manager. 3. The scope, schedule, progress report requirements, and Project Change Request process are described in Exhibit B, attached hereto and by this reference made a part hereof. Agency agrees to the conditions set forth in Exhibit B. 4. Metro grants State and Agency the right to enter onto Metro property for the performance of duties as set forth in this Agreement. Agency grants State the right to enter onto Agency property for the performance of duties as set forth in this Agreement. 5. 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 prior to acceptance by FHWA or outside the scope of work will be considered nonparticipating and paid for at Agency expense. 6. Agency shall comply with the requirements of Buy America 23 CFR 635.410. 7. State considers Agency a subrecipient of the federal funds it receives as reimbursement under this Agreement. The Catalog of Federal Domestic Assistance (CFDA) number and title for this Project is 20.205, Highway Planning and Construction. 2 State/Agency/Metro Agreement No. 31030 8. The term of this Agreement shall begin on the date all required signatures are obtained 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. 9. Agency shall require its contractor(s) and subcontractor(s) that are not units of local government as defined in ORS 190.003, if any, to indemnify, defend, save and hold harmless the State of Oregon, Oregon Transportation Commission and its members, Department of Transportation and its officers, employees and agents from and against any and all claims, actions, liabilities, damages, losses, or expenses, including attorneys' fees, arising from a tort, as now or hereafter defined in ORS 30.260, caused, or alleged to be caused, in whole or in part, by the negligent or willful acts or omissions of Agency's contractor or any of the officers, agents, employees or subcontractors of the contractor ("Claims"). It is the specific intention of the Parties that State shall, in all instances, except for Claims arising solely from the negligent or willful acts or omissions of State, be indemnified by the contractor and subcontractor from and against any and all Claims. 10. Any such indemnification shall also provide that neither Agency's contractor and subcontractor nor any attorney engaged by Agency's contractor and subcontractor shall defend any claim in the name of the State of Oregon or any agency of the State of Oregon, nor purport to act as legal representative of the State of Oregon or any of its agencies, without the prior written consent of the Oregon Attorney General. The State of Oregon may, at any time at its election assume its own defense and settlement in the event that it determines that Agency's contractor is prohibited from defending the State of Oregon, or that Agency's contractor is not adequately defending the State of Oregon's interests, or that an important governmental principle is at issue or that it is in the best interests of the State of Oregon to do so. The State of Oregon reserves all rights to pursue claims it may have against Agency's contractor if the State of Oregon elects to assume its own defense. 11. This Agreement may be terminated by mutual written consent of the Parties. 12. 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 3 State/Agency/Metro Agreement No. 31030 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 if State is prohibited from paying for such work from the planned funding source. 13. Any termination of this Agreement shall not prejudice any rights or obligations accrued to the Parties prior to termination. 14. Information required by 2 CFR 200.331(a), except for (xiii) Indirect cost rate, shall be contained in the USDOT FHWA Federal Aid Project Agreement for this Project, a copy of which shall be provided by State to Agency with the Notice to Proceed. The indirect cost rate for this project, at the time the agreement is written, is 156 percent and may change upon notice to State and State's subsequent written approval. Agency may have other indirect cost rates for departments and or disciplines that have been approved for use by their cognizant agency and State and these rates may be used on the Project, as applicable. 15.Agency and Metro shall each separately, upon completion of the Project and as a condition to this Agreement, complete and file with the appropriate County Clerk, "Memorandum of Agreement and Acknowledgment of Federal Assistance," substantially in the form of Exhibit C attached hereto and by this reference made a part hereof. Agency and Metro shall each provide confirmation of this filing by forwarding to State's Contact a notarized copy of the recorded Memorandum of Agreement and Acknowledgment of Federal Assistance. By means of said acknowledgment of Agency financial obligations, the continued use of said property for public purposes, and the maintenance of the facility or service at a level consistent with normal depreciation or demand or both is recognized and attached to the property as conditions. Any interest in said property by State is proportional to the federal state funding participation in Project. While in default of conditions of this Agreement, Agency will be ineligible to receive federal or state funds from any Active Transportation managed administered program for any project on a street, road or property. The Memorandum of Agreement and Acknowledgment of Federal Assistance shall remain in place for the useful life of Project identified in the Special Provisions. State acknowledges that such interest shall not be deemed a lien, mortgage, deed of trust or other security instrument or interest granted by Agency and Metro for security purposes. 16. 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. 17. Agency, as a recipient of federal funds, pursuant to this Agreement with the State, shall assume sole liability for Agency's breach of any federal statutes, rules, program 4 State/Agency/Metro Agreement No. 31030 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; 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. 18. The Parties 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. 19. Agency and Metro certify and represent that the individual(s) signing this Agreement has been authorized to enter into and execute this Agreement on behalf of Agency or Metro, under the direction or approval of its governing body, commission, board, officers, members or representatives, and to legally bind Agency. 20. 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. 21. 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. 22. State's Project Manager for the Agreement is Michele Thom, Local Liaison, 123 NW Flanders, Portland, OR 97209, 503-731-8279, Michele.r.thom(aD_odot.state.or.us or assigned designee upon individual's absence. State shall notify the other Parties in writing of any contact information changes during the term of this Agreement. 23. Agency's Project Manager for this Agreement is Mike McCarthy, Project Manager, 13125 SW Hall Blvd., Tigard, OR 97223, 503-718-2462, mikem tigard-or.gov or assigned designee upon individual's absence. Agency shall notify the other Parties in writing of any contact information changes during the term of this Agreement. 24. Metro's Contact for this Project is Robert Spurlock, Senior Regional Planner, 600 NE Grand Ave, Portland, OR, 97232, (503) 813-7560, Robert.S p u rlock(c oregonmetro.gov, or assigned designee upon individual's absence. Agency shall notify the other Parties in writing of any contact information changes during the term of this Agreement. 5 State/Agency/Metro Agreement No. 31030 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 2015-2018 Statewide Transportation Improvement Program (STIP), (Key #19327) that was adopted by the Oregon Transportation Commission on December 18, 2014 (or subsequently by amendment to the STIP). SIGNATURE PAGE TO FOLLOW 6 j :i i , 1 �k•: State/Agency[Metro 11" Agreement No.31030 f� CITY OF TIGARD,by and through its STATE OF OREGON,by and through elected officials Its D a me of ransportation By By Hi w y D io} Administrator Title Date Date APPROVAL RECOMMENDED I APPROVED AS TO LEGAL SUFFICIENCY 8y �` Region/1 Managef By City Attorney Date Date By CMAQ Program Manager, r Anoncy Contact Active Transportation Seclian Manager Mike McCarthy,Project Manager f 13125 SW Hail Blvd. Data 1�1 0 i Tigard, OR 97223 503-718-2482 By mikernRtig_ard-or,gQv Regiori'1 Project Services Manager METRO, by and through its elected Date /0 officials APP OVER T LEGAL � I I BY SUF CI C "Title By a elz I j Assist nt Attorney G neral APPROVED AS TO LEGAL SUFFICIENCY hate N . BY �- .---- _ State Contact- Metro Counsel • Oregon Dept;of Transportation Michele Thom, Local Ualson Date 123 NW FlandersTiI Metro Contact; Portland,OR 97209 ! I Robert Spurlock, Senior Regional Planner 503-731-8279 I Mi 800 NE Grand Ave chele.r.thttt omRodo .sae.or.us it ' Portland, OR,07232 (503)813-7580 i ° Robert.SpurlockRoregonmetro,gov, 7 I, 4 _ t 9 i 1 t State/Agency/Metro Agreement No. 31030 CITY OF TIGARD, by and through its STATE OF OREGON, by and through electedfficia its Department of Transportation BY �"� By Title gv'A' Highwa y Division Administrator Date Date �� APPROVAL RECOMMENDED APPROVED AS TO LEGAL SUFFICIENCY By c 4 Region 1 Manager By ,Z--- City Attorney Date Date ±► V By CMAQ Program Manager or Agency Contact: Active Transportation Section Manager Mike McCarthy, Project Manager 13125 SW Hall Blvd. Date Tigard, OR 97223 503-718-2462 By mikem(a)-tigard-or.gov Region 1 Project Services Manager METRO, by and through its elected Date officials APPROVED AS TO LEGAL By SUFFICIENCY Title By Assistant Attorney General APPROVED AS TO LEGAL SUFFICIENCY Date BY State Contact: Metro Counsel Oregon Dept. of Transportation Date Michele Thom, Local Liaison 123 NW Flanders Metro Contact: Portland, OR 97209 Robert Spurlock, Senior Regional Planner 503-731-8279 600 NE Grand Ave Michele.r.thom(a.odot.state.or.us Portland, OR, 97232 (503) 813-7560 Robert.Spurlock(@oregonmetro.gov 7 Metro Contract 934284 State/Agency/Metro Agreement No. 31030 CITY OF TIGARD, by and through its STATE OF OREGON, by and through elected officials its Department of Transportation By By Highway Division Administrator Title Date Date APPROVAL RECOMMENDED APPROVED AS TO LEGAL SUFFICIENCY By Region 1 Manager By City Attorney Date Date ---- -- BY CMAQ Program Manager or Agency Contact: Active Transportation Section Manager Mike McCarthy, Project Manager 13125 SW Hall Blvd. Date Tigard, OR 97223 503-718-2462 By mikem(a)tigard-or.gov Region 1 Project Services Manager METRO, by and through its elected Date officials APPROVED AS TO LEGAL BY �' SUFFICIENCY Title By Assistant Attorney General APPROVED AS TO LEGAL SUFFICIENCY Date By State Contact: Metro C60nsel Oregon Dept. of Transportation Date � ' 2`'� Michele Thom, Local Liaison 123 NW Flanders Metro Contact: Portland, OR 97209 Robert Spurlock, Senior Regional Planner 503-731-8279 600 NE Grand Ave Michele.r.thom(aDodot.state.or.us Portland, OR, 97232 (503) 813-7560 Robert.Spurlockaoregonmetro.gov 7 State/Agency/Metro Agreement No. 31080 EXHIBIT A— Project Location Map 0 2 IAV ''. JAY a_ . \jD - a, o«, MS* : a, wn .. } m &¥Jg - \ . . «w _S - «o.z ; »V w w _, } ». eo + . { & © 3AV oNU W; -]AV ,w. ,, o & / \ 5-44 4 .o4_1 f ■ , . . . . z CO � • # £ E �» 2 \ . ^ J ! I}^d aw� nve nVH _S Onae l VH ¥\ . . • »2:\\\ \?\i �\r , ° » «}�$ © ¥ ,a � \ . � � IAV w'IF ' 0 \ . �t ■ 7 | � 2 } • jj � ° 0 � 3 ƒ | r % } t ■ e 2 � a y� ) ¥17 A 8 D ui CD CDv CD 311, D :. CD c0 CD � i r« ►, a n s* ; a, Z`G O -� W CD .. O e.. ' O loin coot tt t scr NA f z C"Part D s° f {p Wettend, fC A!D.,b m f"' O• ' - WaSt-- ate, f n r f o f d f s O e'. f • W Exhibit A - Map _' of Fanno Creek Trail �% .,.; ten^ -- N (Woodard Park to Bonita Rd Tuslat)n & SSth Ave to Tualatin) �OV"tn 35th Are to Tualatin Segment �> Ctubtratu sW KINC•F!SHER WA' ••Tn'Sejre�t co be Wit byh,,Prater* E istme0t--Trih QSvnrr.Cromr� Ctryer rips�I $W ha+!913tl � t r. Tualatin are. Trgara Oregon 1.7.7 t:orRR6un�t sef."$!i 1.7, Y OTF,et rw^.•.�a tui tatax �an�zk *w r•'i...M...-.rv.�....++n,.n_rm_«o.nr.�.w �.,•=w.�axaes State/Agency/Metro Agreement No. 31030 EXHIBIT B Progress Reports and Project Change Request Process Agreement No. 31030 Key Number: 19327 Project Name: Fanno Creek Trail: Woodard Park-Bonita Rd/85�h Ave-Tualatin Br. 1. Project Description The Project includes design and construction of four segments of shared-use path that are part of the regional Fanno Creek Trail system. A 12 foot wide paved path with structures is assumed for all four segments unless State determines that conditions such as environmental constraints justify a narrower section in a specific area. Path width will include a minimum one-foot shy distance along all structures with railings and in all areas with an adjacent vertical barrier. A one foot shoulder on either side of the trail will be required where no structures exist. Segment #1—Woodard Park to Grant Avenue: Approximately 1,400 feet in length. Segment #2—Ash Avenue to Hall Road: Approximately 1,800 feet in length. Segment #3—Tigard Library to Bonita Road: Approximately 4,200 feet in length. Segment #4—SW 85th Avenue to Tualatin River (Ki-a-Kuts Bridge): Approximately 1,400 feet in length. 2. This Project is subject to progress reporting and project change process as stated below. 3. Monthly Progress Reports (MPR) - Agency shall submit monthly progress reports using MPR Form 734-2862, incorporated by reference and made a part of this Agreement. The Monthly Progress Report is due by the 5th day of each month, starting the first month after execution of this Agreement, and continuing through the first month after State issues Project Acceptance (Second Note)for the Project's construction contract. The fillable MPR form and instructions are available at the following address: http://www.oregon.gov/ODOT/TD/AT/Pages/Forms Applications.aspx 4. Project Milestones – The Parties agree that the dates shown in Table 1 constitute the intended schedule for advancing and completing the Project. Project Milestones may only be changed through amendment of this Agreement, after obtaining an approved Project Change Request. 10 State/Agency/Metro Agreement No. 31030 Table 1: Project Milestones Milestone Description Completion Date 1 Obligation (Federal Authorization) of Federal funds for the December 31, 2016 Preliminary Engineering phase of the Project 2 Obligation (Federal Authorization) of Federal Funds for the September 30, 2017 Ri ht of Way phase of the Project if needed 3 Obligation (Federal Authorization) of Federal for the February 28, 2019 Construction phase of the Project 5. Requirements for Construction Projects a. Second Notification —Upon completion of on-site work Second Notification shall be issued. Second Notification is further defined in Definitions. The anticipated and actual date for issuance of Second Notification shall be reported in the required monthly report as described in paragraph 3, above. b. Third Notification — Issuance of Third Notification must be received within 120 days from the issuance of Second Notification as stated above with the exception of any Establishment Period noted in the Construction Contract or any remaining responsibilities of the Contractor. If Third notification is not issued within the required timeframe, Consequences for Non-Performance, paragraph 8 below may apply. 6. Project Change Request (PCR) Process - Agency must obtain approval from State's Contact for changes to the Project's scope, schedule, or budget as specified in paragraphs 6a, 6b and 6c, below. Agency shall be fully responsible for all costs that occur outside the established Project scope, schedule or budget and prior to an approved PCR. Amendments to this Agreement are required for all approved PCRs. a. Scope - A PCR is required for any significant change or reduction in the scope of work described in the Project Description (Paragraph 1 of this Exhibit). b. Schedule — A PCR is required if Agency or State's Contact anticipate that any Project Milestone will be delayed by more than ninety (90) days, and also for any change in schedule that will require amendment of the Statewide Transportation Improvement Program (STIP). c. Budget — Total Project Cost and approved funds for the Project are controlled by Terms of Agreement paragraph 2 of this Agreement. 7. PCR Form - Agency must submit all change requests using PCR Form 734-2863, attached by reference and made a part of this Agreement. The PCR Form is due no later than thirty (30) days after the need for change becomes known to Agency. The PCR shall explain what change is being requested, the reasons for the change, and any efforts to 11 State/Agency/Metro Agreement No. 31030 mitigate the change. A Project Change Request may be rejected at the discretion State's CMAQ Program Manager. The fillable PCR form and its instructions are available at the following web site: http://www.oregon.gov/ODOT/TD/AT/Pages/Forms Applications.aspx 8. Consequence for Non-Performance - If Agency fails to fulfill its obligations in paragraphs No. 3 through No. 7 above, or does not assist in advancing the Project or perform tasks that the Agency is responsible for under the Project Milestones, State's course of action through the duration of Agency's default may include: (a) restricting Agency consideration for future funds awarded through State's managed funding programs, (b) withdrawing unused Project funds, and (c) terminating this Agreement as stated in Terms of Agreement, Paragraph No. 12a and 12b. State may also choose to bill Agency for expenses incurred by State for staff time to assist in completion of the final project documentation and issuance of Third Notification. 12 State/Agency/Metro Agreement No. 31030 After recording, return to: EXHIBIT C MEMORANDUM OF AGREEMENT AND ACKNOWLEDGEMENT OF FEDERAL ASSISTANCE [State Recording Authority: ORS 93.710 and ORS 205.130(2)] Agreement Number.- Project umber:Project Name: Key Number: Local Agency Agreement No. between the (Insert Agency Name) and the State of Oregon, Department of Transportation was executed on . Pursuant to paragraph , Terms of Agreement, page of the Local Agency Agreement, upon the recording of this document, the (Insert Agency Name) received federal funds for the Project described in the Local Agency Agreement. The property and assets under the jurisdiction of the (Insert Agency Name) were improved with the assistance from the United States Government. Such assistance was provided to (Insert Agency Name), in reimbursement of costs associated with the (Insert Project Name), The use and disposition of said property is subject to the terms of the above noted Local Agency Agreement, copies of which may be obtained from the Director of ODOT and is also subject to 2 CFR part 1201. A description of the improved property is attached. (Insert Agency Name) By: (Notary Stamp) (Name of person) Title: State of Oregon: County of Signed or attested before me on by (Date) (name(s) of person(s) My commission expires on STATE OF OREGON, DEPARTMENT OF TRANSPORTATION By: (Notary Stamp) Title: Active Transportation Section Manager State of Oregon: County of Signed or attested before me on by (Date) (name(s) of person(s) My commission expires on Oregon Department of Transportation; 555 13" Street NE; Salem, OR 97301-4178 13 State/Agency/Metro Agreement No. 31030 ATTACHMENT NO. 1 to Agreement No. 31030 SPECIAL PROVISIONS 1. State shall be responsible for delivering all aspects of the Project. 2. State shall award and administer the construction contract and be responsible for all required materials testing and quality documentation; and Agency will prepare necessary documentation with State-qualified personnel, to allow State to make all contractor payments. Contract administration, construction engineering and inspection will follow the most current version of the ODOT Construction Manual and the ODOT Inspector's Manual. 3. Agency guarantees the availability of Agency funding in an amount required to fully fund Agency's share of the Project. 4. State may make available the State'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 reimburse State for payment of any Consultant costs that are not eligible as federal participating costs or that are not included as part of the total cost of the Project. 5. State will perform work throughout the duration of the Project and shall provide a preliminary estimate of State costs for this work. This work includes, but is not limited to, contract administration, plan review and approval, and attend meetings when necessary. Prior to the start of each Project phase State shall provide an updated estimate of State costs for that phase. Such phases generally consist of Preliminary Engineering, Right-of- Way, Utility, and Construction. Agency understands that State's costs are estimates only and agrees to reimburse State for actual cost incurred per this Agreement. 6. The Parties agree that the useful life of this Project is defined as twenty (20) years. Agency shall, at its own expense, maintain and operate the Project upon completion and throughout the useful life of the Project at a minimum level that is consistent with normal depreciation and/or service demand. 7. Metro grants State and Agency the right to enter onto Metro property for the performance of duties as set forth in this Agreement. Agency grants State the right to enter onto Agency property for the performance of duties as set forth in this Agreement. 8. Agency shall, prior to State's award of the contract, obtain or assist State in obtaining all necessary permissions from Metro allowing State to perform work on Metro's facility. 14 State/Agency/Metro Agreement No. 31030 ATTACHMENT NO. 1 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. 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 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. Non-certified agencies must contract with State or a State certified local public agency to secure services to perform plans, specifications and estimates (PS&E), construction contract advertisement, bid, award, contractor payments and contract administration. Non-certified agencies may use a State-approved consultant to perform preliminary engineering, and construction engineering services. PROJECT FUNDING REQUEST 4. 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. 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 5. 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 STDPRO-2015.doc Rev. 04-28-2015 15 State/Agency/Metro Agreement No. 31030 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 vendor, using criteria in 2 CFR 200.330. 6. 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 outside the Local Agency Guidelines Manual that result in items being declared non-participating by FHWA, such items deemed non-participating will be negotiated between Agency and State. 7. 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 STDPRO-2015.doc Rev. 04-28-2015 16 State/Agency/Metro Agreement No. 31030 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. 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 follow the requirements stated in the Single Audit Act. Agencies expending $500,000 or more in Federal funds (from all sources) in its fiscal year beginning prior to December 26, 2014, shall have a single organization-wide audit conducted in accordance with the Single Audit Act of 1984, PL 98-502 as amended by PL 104-156 and subject to the requirements of 49 CFR Parts 18 and 19. Agencies expending $750,000 or more in federal funds (from all sources) in a fiscal year beginning on or after December 26, 2014 shall have a single organization-wide audit conducted in accordance with the provisions of 2 CFR part 200, subpart F. Agencies expending less than $500,000 in Federal funds in a fiscal year beginning prior to December 26, 2014, or less than $750,000 in a fiscal year beginning on or after that date, is exempt from Federal audit requirements for that year. Records must be available for review or audit by appropriate officials based on the records retention period identified in the Project Agreement. The cost of this audit can be partially prorated to the federal program. 11.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. 12.Agency shall present invoices for one hundred (100) percent of actual costs incurred by Agency on behalf of the Project directly to State's Liaison for review, approval and reimbursement to Agency. Costs will be reimbursed consistent with federal funding provisions and the Project Agreement. Such invoices shall identify the Project by the name of the Project Agreement, reference the Project Agreement number, and shall itemize and explain all expenses for which reimbursement is claimed. Invoices shall be presented for periods of not less than one-month duration, based on actual expenses to date. All invoices received from Agency must be approved by State's Liaison prior to payment. Agency's actual costs eligible for federal-aid or State participation shall be those allowable under the provisions of the Federal-Aid Policy Guide (FAPG), Title 23 CFR parts 1.11, 140 and 710. Final invoices shall be submitted to State for processing within forty-five (45) days from the end of each funding phase as follows: a) preliminary engineering, which ends at the award date of construction b) last payment for right of way acquisition and c) STDPRO-2015.doc Rev. 04-28-2015 17