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ODOT ~ IG200004 & IG223004~ Intergovernmental Agreement For Right Of Way Services Fanno Creek Trail: Woodard Park-Bonita Rd/85Th Ave-Tualatin Br Misc. Contracts and Agreements No. 34320 A136-GO092418 AMENDMENT NUMBER 01 RIGHT OF WAY SERVICES AGREEMENT Fanno Creek Trail: Woodard Park— Bonita Rd/85th Ave — Tualatin Br. City of Tigard 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 City of Tigard, acting by and through its elected officials, hereinafter referred to as "Agency," entered into on August 7, 2020. It has now been determined by State and Agency that the Agreement referenced above shall be amended to increase the dollar amount of State's obligations under this Agreement. 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 3 subparagraph a., Page 2, which reads: Under no condition shall State's obligations under this Agreement exceed $278,614.00, including all expenses, unless agreed upon by both Parties in writing in a fully executed amendment to this Agreement. This maximum is the amount programmed in the STIP for the right of way phase of the Project. Shall be deleted in its entirety and replaced with the following: Under no condition shall State's obligations under this Agreement exceed $500,000.00, including all expenses, unless agreed upon by both Parties in writing in a fully executed amendment to this Agreement. This maximum is the amount programmed in the STIP for the right of way phase of the Project. 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 Agency/State Agreement No. 34320-1 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 2021-2024 Statewide Transportation Improvement Program (STIP), (Key #19327) that was adopted by the Oregon Transportation Commission on July 15, 2020 (or subsequently by amendment to the STIP). CITY OF TIGARD, by and through its STATE OF OREGON, by and through elected officials its Department of Transportation By Jason B. Snider, Mayor By State Righ f Way Manager Date 3-15-22 C2�-►.. Date 3/31/2022 By Date APPROVAL RECOMMENDED LEGAL REVIEW APPROVAL (If By a� n� required in Agency's process) Region 1 Right of Way Manager By Shelby Rihala, City Attorney Date 3/22/22 Agency Counsel By Date3-15-22 Date Agency Contact: Zach Morris, Senior Project Engineer By 13125 SW Hall Blvd. Tigard, OR 97223 Date 503-718-2467 zacharym@tigard-or.gov APPROVED AS TO LEGAL SUFFICIENCY State Contact: Damon Gray, Right of Way Agent By N/A 123 NW Flanders Street Assistant Attorney General Portland, OR 97209 503-731-8425 Date: Damon.gray@odot.oregon.gov 2 Misc. Contracts and Agreements No. 34320 AD092-052620 INTERGOVERNMENTAL AGREEMENT FOR RIGHT OF WAY SERVICES 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" or "ODOT"; and CITY OF TIGARD, acting by and through its elected officials, hereinafter referred to as "Agency," both herein referred to individually as "Party" and collectively as "Parties." RECITALS 1. By the authority granted in Oregon Revised Statute (ORS) 190.110, 283.110, 366.572 and 366.576, state agencies may enter into agreements with units of local government or other state agencies for the performance of any or all functions and activities that a Party to the agreement, its officers, or agents have the authority to perform. 2. By the authority granted in ORS 366.425, State may accept deposits of money or an irrevocable letter of credit from any county, city, road district, person, firm, or corporation for the performance of work on any public highway within the State. Money so deposited shall be disbursed for the purpose for which it was deposited. 3. The State is responsible for delivering the Fanno Creek Trail: Park - Bonita Rd./85th Ave. - Tualatin River Br. project ("Project") under IGA Agreement Number 31030 executed on 10/6/16 ("Project Agreement") attached hereto as Exhibit C and by this reference made a part hereof. 4. This Agreement covers a subset of the work set forth in the Project Agreement; therefore, the Project Agreement describes the general scope and funding for the right of way activities carried out under this Agreement. This Agreement further defines the roles and responsibilities of the Parties regarding real property to be used as part of the right of way for the Project, and further refines the details of the scope and funding for these right of way activities 5. As of the Effective Date of this Agreement, there are no local public agencies ("LPAs") certified to independently administer federal-aid projects for right of way services. State is ultimately responsible for the certification and oversight of all right of way activities under this Agreement. - 1 - 34320 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, to accomplish the objectives in the Project Agreement, State agrees to perform the right of way Services shown in Exhibit A - Special Provisions ("Services"), attached hereto and by this reference made a part hereof. 2. The Parties agree to comply with the terms of this Agreement and the applicable terms of project agreement in performing the Services. In the event of a direct conflict, the terms of the Project Agreement will control over any conflicting provision in this Agreement. 3. The funding and payment for the Services are set forth in the Project Agreement. This Agreement commits no additional funding for the Services. a. Under no condition shall State's obligations under this Agreement exceed $278,614.00, including all expenses, unless agreed upon by both Parties in writing in a fully executed amendment to this Agreement. This maximum is the amount programmed in the STIP for the right of way phase of the Project. i. Agency agrees to reimburse State for all expenses, including salaries and other personnel expenses (OPE) of State employees performing Services, direct costs, costs of rental equipment used, travel expenses, and per-diem expenditures. Travel expenses shall be reimbursed in accordance with the current Oregon Department of Administrative Services rates as contained in the Oregon Accounting Manual (OAM), which can be found at: https://www.oregon.gov/das/Financial/Acctnq/Documents/40.10.00.pdf. ii. For Services provided under this Agreement, Agency may satisfy its funding requirement through a contribution of real property for the Project. Credit for this contribution will only be allowed if the contribution complies with all requirements of 23 CFR 710.501 and 710.507 and if written approval is obtained from State's Active Transportation Section, Program and Funding Services Manager and FHWA prior to the start of the right of way phase of the Project and after review for compliance with State's procedures for donations and contributions. 4. Exhibits Attached and Incorporated. a. This Agreement includes the following exhibits, each of which is attached and incorporated into this Agreement by reference as though fully set forth herein: • Exhibit A— Special Provisions • Exhibit B — Resolution Exercising The Power of Eminent Domain • Exhibit C - Project Agreement 31030 - 2 - 34320 5. This Agreement becomes effective on the date all required signatures are obtained ("Effective Date"). Services shall begin on or after the Effective Date and shall be completed no later than 20 years after signature date, on which date this Agreement automatically expires unless extended by a fully executed amendment. 6. Both Parties will strictly follow the rules, policies and procedures of the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, as amended and implemented through Title 49, Part 24, ORS Chapter 35 and the ODOT Right of Way Manual, located at https://www.oregon.gov/ODOT/ROW/Documents/ROW-Manual.pdf and incorporated herein by this reference. Each Party will require its contractors and subcontractors, if any, to comply with this provision. STATE OBLIGATIONS 1. State shall perform the Services assigned to State in Exhibit A. 2. State's right of way contact person for this Agreement is Damon Gray, Right of Way Agent. 123 NW Flanders St. Portland, OR 97209. 503-731-8425, Damon.gray(O-)-odot.state.or.us , or assigned designee upon individual's absence. State shall notify the other Party in writing of any contact changes during the term of this Agreement. AGENCY OBLIGATIONS 1. Agency shall perform the Services assigned to Agency in Exhibit A. All Services provided by Agency shall comply with ODOT's Right of Way Manual in effect at the time the Services are performed. 2. Agency certifies, at the time this Agreement is executed, that sufficient funds are available and authorized for expenditure to finance costs of this Agreement within Agency's current appropriation or limitation of current budget. Agency is willing and able to finance its share of all costs and expenses incurred under this Agreement up to the maximum amount set forth in Terms of Agreement Paragraph. 3. Agency's performance of Services. a. In performing Services under this Agreement, Agency may utilize qualified individuals from Agency's staff or the Staff of another local public agency, as described in the ODOT Right of Way Manual and approved by the State's Region Right of Way Office. b. Agency may also request State act as the lead contracting agency and deliver a consultant contract on behalf of Agency, using consultants from State's Full Service Architectural and Engineering (A&E) Price Agreement 2 Tier Selection Process, as applicable. Tier 2 procurements must be requisitioned through State's Local Agency Liaison (LAL) with solicitation process administered by State's Procurement Office. Forms and procedures for Tier 2 process are located at: https://www.oregon.gov/ODOT/Business/Procurement/FS/tier2guide.doc - 3 - 34320 c. Agency's needed right of way services may be performed by utilizing appraiser Services procured by Agency from State's Qualified Appraiser List (online at: https://www.oregon.gov/ODOT/ROW/Documents/Appraisal_Qualified-Consultant- List.pdf) or other right of way related Services procured by Agency from any source of qualified contractors or consultants. d. Contractor selections under Agency Obligations, Paragraphs 3.c above may be based on price alone, price and qualifications, or qualifications alone followed by negotiation. Federally funded procurements carried out by Agency for right of way Services must be conducted under State's certification program for consultant selection and must comply with requirements in the LPA A&E Requirements Guide, and must use the State's standard A&E Contract Template for LPAs which may be modified to include State-approved provisions required by Agency. State and locally funded procurements carried out by Agency must comply with applicable State rules and statutes for A&E "Related Services" (Agency may use its own contract document). The LPA A&E Requirements Guide and A&E Contract Template are available at: https://www.oregon.gov/ODOT/Business/Procurement/Pages/LPA.aspx. 4. 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, Oregon 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 ("Claims"), to the extent such Claims are caused, or alleged to be caused, by the negligent or willful acts or omissions of Agency's contractor or any of the officers, agents, employees or subcontractors of the contractor. It is the specific intention of the Parties that State shall, in all instances, except to the extent Claims arise solely from the negligent or willful acts or omissions of State, be indemnified from and against all Claims caused or alleged to be caused by the contractor or subcontractor. 5. Any such indemnification shall also provide that neither the Agency's contractor or subcontractor nor any attorney engaged by Agency's contractor or 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. 6. Agency shall perform all Services under this Agreement as an independent contractor and shall be exclusively responsible for all costs and expenses related to its employment of - 4 - 34320 individuals to perform the Services under this Agreement including, but not limited to, retirement contributions, workers compensation, unemployment taxes, and state and federal income tax withholdings. 7. When Agency is performing Services under this Agreement, Agency shall ensure that temporary pedestrian routes are provided through or around any Project work zone. Any such temporary pedestrian route shall include directional and informational signs, comply with ODOT standards, and include accessibility features equal to or better than the features present in the existing pedestrian facility. Agency shall also ensure that advance notice of any temporary pedestrian route is provided in accessible format to the public, people with disabilities, and disability organizations at least 10 days prior to the start of construction. 8. Agency certifies and represents that all individuals signing this Agreement have 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. 9. Agency acknowledges and agrees that State, the Oregon Secretary of State's Office, the federal government, and their duly authorized representatives shall have access to the books, documents, papers, and records of Agency which are directly pertinent to this Agreement for the purpose of making audit, examination, excerpts, and transcripts for a period of six (6) years after final payment. Copies of applicable records shall be made available upon request. Payment for costs of copies is reimbursable by State. 10.Agency shall comply with all federal, state, and local laws, regulations, executive orders and ordinances applicable to the Services under this Agreement, including, without limitation, the provisions of ORS 27913.220, 27913.225, 27913.230, 27913.235 and 27913.270 incorporated herein by reference and made a part hereof. Without limiting the generality of the foregoing, Agency expressly agrees to comply with (i) Title VI of Civil Rights Act of 1964; (ii) Title V and Section 504 of the Rehabilitation Act of 1973; (iii) the Americans with Disabilities Act of 1990 and ORS 659A.142; (iv) all regulations and administrative rules established pursuant to the foregoing laws; and (v) all other applicable requirements of federal and state civil rights and rehabilitation statutes, rules and regulations. 11.Agency shall upon State's request provide copies of any required documentation related to the Services as described in Exhibit A. 12.Agency's right of way contact person for this Agreement is Zach Morris, 13125 SW Hall Blvd. Tigard, OR 97223, 503-718-2467, Zacharym@tigard-or.gov, or assigned designee upon individual's absence. Agency shall notify the other Party in writing of any contact information changes during the term of this Agreement. GENERAL PROVISIONS: 1. Termination. - 5 - 34320 a. This Agreement may be terminated by mutual written consent of both Parties. b. This Agreement may be terminated by either Party upon thirty (30) days' notice, in writing, and delivered by certified mail or in person, under any of the following conditions: i. If either Party fails to provide Services called for by this Agreement within the time specified herein or any extension thereof. ii. If either Party fails to perform any of the other provisions of this Agreement or so fails to pursue the Services as to endanger performance of this Agreement in accordance with its terms, and after receipt of written notice fails to correct such failures within ten (10) days or such longer period as may be authorized. c. State may terminate this Agreement effective upon delivery of written notice to Agency, or at such later date as may be established by State, under any of the following conditions: i. If 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. ii. If Agency fails to provide payment of its share of the cost of the Project. iii. If federal or state laws, regulations or guidelines are modified or interpreted in such a way that either the Services under this Agreement is prohibited or State is prohibited from paying for such Services from the planned funding source. d. Any termination of this Agreement shall not prejudice any rights or obligations accrued to the Parties prior to termination. 2. All employers that employ subject workers who perform Services under this Agreement in the State of Oregon shall comply with ORS 656.017 and provide the required workers' compensation coverage unless such employers are exempt under ORS 656.126. Employers Liability insurance with coverage limits of not less than $500,000 must be included. Both Parties shall ensure that each of its subcontractors complies with these requirements. 3. 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 - 6 - 34320 choosing are conditions precedent to that Party's liability with respect to the Third Party Claim. 4. With respect to a Third Party Claim for which State is jointly liable with Agency (or would be if joined in the Third Party Claim), State shall contribute to the amount of expenses (including attorneys' fees), judgments, fines and amounts paid in settlement actually and reasonably incurred and paid or payable by Agency in such proportion as is appropriate to reflect the relative fault of State on the one hand and of Agency on the other hand in connection with the events which resulted in such expenses, judgments, fines or settlement amounts, as well as any other relevant equitable considerations. The relative fault of State on the one hand and of Agency on the other hand shall be determined by reference to, among other things, the Parties' relative intent, knowledge, access to information and opportunity to correct or prevent the circumstances resulting in such expenses, judgments, fines or settlement amounts. State's contribution amount in any instance is capped to the same extent it would have been capped under Oregon law, including the Oregon Tort Claims Act, ORS 30.260 to 30.300, if State had sole liability in the proceeding. 5. 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. 6. 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. 7. 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 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 the Federal Highway Administration, 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. - 7 - 34320 8. Agency and State are the only Parties to this Agreement and are the only Parties entitled to enforce its terms. Nothing in this Agreement gives, is intended to give, or will be construed to give or provide, any benefit or right, whether directly, indirectly, or otherwise, to third persons unless such third persons are individually identified by name herein and expressly described as intended beneficiaries of the terms of this Agreement. 9. 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. 10.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. 11.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. 12.Survival. All rights and obligations of the Parties under this Agreement will cease upon termination or expiration of this Agreement, other than the rights and obligations of the parties that by their nature or express terms survive termination or expiration of this Agreement. THE PARTIES, by execution of this Agreement, hereby acknowledge that their signing representatives have read this Agreement, understand it, and agree to be bound by its terms and conditions. Signature Page to Follow - 8 - 34320 CITY OF TIGARD, by and through its officials STATE PF OREGON, by and through its Dep "ent f T sportation By By State Rig o ay Manager Date 6/30/2020 Date By APPROVAL RECOMMENDED Date By a± J4k---r=00y Region '1 Right of Way Manager LEGAL REVIEW APPROVAL (If required in Agency's process) Date 8/3/2020 By By Agency's C nsel Date 6130124 Date Agency Contact: APPROVED AS TO LEGAL SUFFICIENCY Zach Morris, Senior Project Engineer By NIA 13125 SW Hall Blvd, Assistant Attorney General Tigard, OR 97223 503-718-2467 Date zacharyrn@tigard-or.gov APPROVED State Contact: (If Litigation Services related to Condemnation Damon Gray, Right of Way Agent are to be done by State) 123 NW Flanders St. Portland, OR 97209 5133-731-8425 Damon-gray@odot.state-or-us By N/A Chief Trial Counsel Date 34320 Exhibit A SPECIAL PROVISIONS Right of Way Services A. Preliminary Phase: State or Agency shall perform the Services outlined in this Section A during the preliminary right of way phase of the Project as identified below. When Services listed under this Section A are performed by Agency, Agency shall charge the Services as preliminary engineering expenditures. 1. State shall prepare preliminary cost estimates. 2. State shall make preliminary contacts with property owners. 3. State shall gather and prepare data for environmental documents. 4. State shall develop access and approach road list. 5. State shall help prepare field location and project data as defined in the Project Agreement. 6. Title. State shall provide preliminary title reports, if State determines they are needed, before negotiations for acquisition commence. 7. Legal Descriptions: a. State shall prepare sufficient horizontal control, recovery and retracement surveys, vesting deeds, maps and other data so that legal descriptions can be written. b. State shall prepare construction plans and cross-section information for the Project. c. State shall write legal descriptions and prepare right of way maps. If the Agency acquires any right of way on a State highway, the property descriptions and right of way maps shall be based upon centerline stationing and shall be prepared in accordance with the current ODOT Right of Way Engineering Manual, located at https://www.oregon.gov/ODOT/ETA/Documents Geometronics/ROW-Eng- Manual.pdf and incorporated herein by reference. The preliminary and final versions of the property descriptions and right of way maps must be reviewed and approved by the State. d. State shall specify the degree of title to be acquired (e.g., fee, easement), which must be determined in accordance with the current ODOT Right of Way Manual. 8. Hazmat: a. State shall conduct a Level 1 Initial Site Assessment, according to State Guidance, within Project limits to detect presence of hazardous materials on any property purchase, excavation or disturbance of structures, as early in the Project design as possible, but at a minimum prior to property acquisition or approved design. - 10 - 34320 b. State shall conduct a Level 2 Preliminary Site Investigation, according to ODOT's Hazmat Program Procedures Guidebook and other applicable requirements of the Oregon Department of Environmental Quality, of sufficient scope to confirm the presence of contamination, determine impacts to properties and develop special provisions and cost estimates, if the Level 1 Initial Site Assessment indicates the potential presence of contamination that could impact the properties. If contamination is found, State will promptly disclose the severity and extent of contamination to Agency and present a recommendation for remediation to Agency as set forth in ODOT's Right of Way Manual Section 6.330 paragraph 2. c. Agency shall attempt to have the property owner undertake any necessary remediation at the property owner's expense. Other options are set forth in ODOT's Right of Way Manual section 6.330 paragraph 2.b. If Agency undertakes any remediation on the site, Agency will be solely responsible for any liability that may arise from such remediation. B. Right of Way Phase: State or Agency shall perform the Services outlined in this Section B during the acquisition right of way phase of the Project as identified below. When Services listed under this Section B are performed by Agency, Agency shall charge the Services as right of way expenditures. 1. Right of Way Acquisition: a. Right of Way Acquisition is the process of obtaining property necessary for the Project, from negotiation to possession of the property, using various sub-processes including, but not limited toy appraisal, negotiation, condemnation, relocation, title closing, and project related property management related to the potential exercise of eminent domain. The basic requirements for carrying out right of way acquisition for the Project are set forth in this Section B. b. When performing the right of way acquisition Services, State shall provide Agency with a monthly status report of the Services. c. Title to properties acquired shall be in the name of Agency. d. The Agency shall adopt a resolution of intention and determination of necessity in accordance with ORS 35.235 and ORS 35.610, authorizing acquisition and condemnation ("Resolution"). Agency's Resolution shall be substantially in the form of Exhibit B, attached hereto and by this reference made a part hereof. 2. Real Property and Title Insurance: a. Agency shall determine sufficiency of title (taking subject to). If the Agency acquires any right of way on a State highway, sufficiency of title (taking subject to) shall be determined in accordance with the current ODOT Right of Way Manual, and after obtaining State's concurrence. Agency shall clear any encumbrances necessary to - 11 - 34320 conform to these requirements, obtain Title Insurance policies as required and provide the State copies of any title policies for the properties acquired. b. Agency shall accept conveyed property "as-is" in accordance with ORS 93.808. State is not required to provide any additional Services to Agency, including but not limited to payment, documentation, platting, surveying, or remediation, beyond those specifically set forth in this Agreement. 3. Appraisal: a. State shall conduct the valuation process of properties to be acquired. If hazardous materials are located on the property, State shall use section 6.330, paragraph 2 in ODOT's Right of Way Manual. b. State shall perform the appraisal reviews to set just compensation. c. Agency shall recommend just compensation, based upon a review of the valuation by qualified personnel. 4. Negotiations: a. Agency shall tender all monetary offers to landowners in writing at the compensation shown in the appraisal review. Agency shall have sole authority to negotiate and make all settlement offers. When settlements for property acquisitions are made for more or less than the approved just compensation amount, a justification is required. Said statement will include the consideration of any property trades, construction obligations and zoning or permit concessions. If Agency performs this function, it will provide State with all pertinent letters, negotiation records and obligations incurred during the acquisition process. b. State and Agency shall determine a date for certification of right of way and agree to cosign the State's Right of Way Certification form. State and Agency agree possession of all right of way is complete prior to advertising for any construction contract, unless otherwise agreed to by Agency and State. c. Agency agrees to file all Recommendations for Condemnation (Form 734-3311 and accompanying documents) with the court at least seventy (70) days prior to the right of way certification date if negotiations have not been successful on those properties. 5. Relocation: - 12 - 34320 a. State shall perform any relocation assistance, make replacement housing computations, and do all things as required by applicable state and federal law necessary to relocate any persons displaced by the Project. b. Agency shall determine all relocation benefits each property owner is eligible for and shall make all relocation and moving payments. c. Agency shall facilitate the relocation appeal process. C. Closing Phase 1. Agency shall close all transactions. This includes drawing of deeds, releases and satisfactions necessary to clear title, obtaining signatures on release documents, and making all payments. When State is providing Services as a consultant for the Agency, State shall submit all signed Final Report packets, information required by the Uniform Act, and agreements to the Agency. 2. Upon acceptance by Agency the conveyance documents shall be recorded. D. Property Management 1. Agency shall take possession of all the acquired properties. There shall be no encroachments of buildings or other private improvements allowed upon the State highway right of way. 2. State shall dispose of all improvements and excess land consistent with applicable state, federal, and local laws and policies. 3. State shall conduct asbestos, lead paint and other hazardous materials surveys for all structures that will be demolished, renovated or otherwise disturbed. Asbestos surveys must be conducted by an AHERA (asbestos hazard emergency response act) certified inspector. E. Condemnation 1. Agency may offer mediation if the Agency and property owners have reached an impasse. 2. Agency shall perform all administrative functions in preparation of the condemnation process, such as preparing final offer and complaint letters. 3. Agency shall perform all legal and litigation Services related to the condemnation process. Agency agrees to pass a resolution substantially in the form attached hereto as Exhibit B specifically identifying the property being acquired. - 13 - 34320 F. Transfer of Right of Way to State When right of way is being acquired in Agency's name, Agency agrees to transfer and State agrees to accept all right of way acquired on the State highway. Agency shall identify the existence of any hazardous materials on or in the property prior to the transfer. The specific method of conveyance will be determined by the Agency and the State at the time of transfer and shall be coordinated by the State's Region Right of Way Manager. Agency agrees to provide the State all information and file documentation the State deems necessary to integrate the right of way into the State's highway system. At a minimum, this includes: copies of all recorded conveyance documents used to vest title in the name of the Agency during the right of way acquisition process, and the Agency's Final Report or Summary Report for each acquisition file that reflects the terms of the acquisition and all agreements with the property owner(s). G. Transfer of Right of Way to Agency When right of way is being acquired in State's name, State agrees to transfer and Agency agrees to accept, at no additional cost to the State, all right of way acquired on the Agency's facility, subject to concurrence from the Oregon Transportation Commission and FHWA at the time of the transfer. State shall identify the existence of any hazardous materials on or in the property prior to the transfer. The specific method of conveyance will be determined by the State and the Agency at the time of transfer and shall be coordinated by the State's Region Right of Way Manager. If requested, State agrees to provide Agency information and file documentation associated with the transfer. - 14 - 34320 EXHIBIT B RESOLUTION EXERCISING THE POWER OF EMINENT DOMAIN Right of Way Services (instructions, pleasPe delete before comp a orm)Regions: s portion oTthe document is [nlocked. The LPA should block and copy to incorporate this language into their own standard ligsolution form OR fill in an "attested to" line or signature line at the bottom and use this forA WHEREAS (insert title of agency) may exercise the power of eminent domain pursuant to (Agency's charter) (statutes conferring authority) and the Law of the State of Oregon generally, when the exercise of such power is deemed necessary by the (insert title of agency)'s governing body to accomplish public purposes for which (insert title of agency) has responsibility; WHEREAS (insert title of agency) has the responsibility of providing safe transportation routes for commerce, convenience and to adequately serve the traveling public; WHEREAS the project or projects known as (insert Project name) have been planned in accordance with appropriate engineering standards for the construction, maintenance or improvement of said transportation infrastructure such that property damage is minimized, transportation promoted, travel safeguarded; and WHEREAS to accomplish the project or projects set forth above it is necessary to acquire the interests in the property described in "Exhibit A" attached to this Resolution and, by this reference incorporated herein; now, therefore, BE IT HEREBY RESOLVED by (Agency's Council, Commission, or Board) 1. The foregoing statements of authority and need are, in fact, the case. The project or projects for which the property is required and is being acquired are necessary in the public interest, and the same have been planned, designed, located, and will be constructed in a manner which will be most compatible with the greatest public good and the least private injury; 2. The power of eminent domain is hereby exercised with respect to each of the interests in property described in Exhibit A to this Resolution. Each is acquired subject to payment of just compensation and subject to procedural requirements of Oregon law; 3. ([Insert title of Agency]'s staff and [attorney/counsel] --OR-- (The Oregon Department of Transportation and the Attorney General) are authorized and requested to attempt to agree with the owner and other persons in interest as to the compensation to be paid for each acquisition, and, in the event that no satisfactory agreement can be reached, to commence and prosecute such condemnation proceedings as may be necessary to finally determine just compensation or any other issue appropriate to be determined by a court in connection with the acquisition. This authorization is not intended to expand the jurisdiction of any court to decide matters determined above or determinable by the (Agency's Council, Commission, or Board). 4. (insert title of agency) expressly reserves its jurisdiction to determine the necessity or propriety of any acquisition, its quantity, quality, or locality, and to change or abandon any acquisition. DATED this day of 20_ [insert signature blocks here] - 15 - 34320 Attachments: Exhibit A to Agency Resolution Exercising the Power of Eminent Domain — Property Description - 16 - 34320 Exhibit A to Agency Resolution Exercising the Power of Eminent Domain — Property Description [insert property description] - 17 - 34320 Exhibit C [For Funding Options 1 & 2 = Project Agreement/ For Funding Option 3 = Project Location] [insert appropriate document] - 18 - 34320 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/HwVConstF orms1.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 «p„ EXHIBIT B, Paragraph 1, Page 10, which reads: 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. 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: Project 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.thom(a--)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. 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, Justin.d.shoemaker(ab_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, Robert.Spurlock 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, 0lena.Turula(o)_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. 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 CITY OF TIGARD, by and through its STATE OF OREGON, by and through elected officipls' ` its Department of Transportation r By BY Mayor ,` Highway Division Administrator Date Date LEGAL REVIEW APPROVAL. (If required in Agency's process) APPROVAL RECOMMENDED ayBy -- ... City Attorrie Region 1, Manager Date f 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 rnikerng i-, arq dlor.gov Date METRO, by and through its elected APPROVED A5 TO LEGAL officials SUFFICIENCY Y Assistant Attorney General Date _ Date: LEGAL REVIEW APPROVAL (If required in Agency' rocess) State Contact: r Justin Shoemaker, local Agency Liaison Ey 123 NW Flanders City Morn Portland, OR 97209 _ 503-731-8486 bate __ c t r Justin.d.shoemakerCcDodot.state.or.us Metro Contact: Olena Turula, Senior Regional Planner 600 NE Grand Ave Portland, OR 97232 503813-7560 QIena.Turula a(],oreaonmetro.ggy 5 7 Agency/Stade/Metro Agreement No.31030-01 CITY OF TIGARD, by and through its STATE OF OREGON,by and through elected officials Its3ay a of Transportation By Mayor Higision Administrator Bate Date LEGAL,REVIEW APPROVAL (If required in Agency's process) APPROVAL RECOMMENDED By_ _ 13y' ��.--� � City Attorney Region 1, Manager 7-31-2w � Date Date M CMAQ Program anager or Aaencv Gorrtagt: Active Yra spo tion Section M�ger Mike McCarthy, Project Manager 13125 SW Hall Blvd By rLc Tigard, OR.97223 Region 1 Project Services Manager 503-718.2482 MiktmCcAtlaard-or.aov - METRO, by and through its elected APPROVED A3 TO LEGAL. officials SUPFICIENCY By B A' tant Attorney General Date Date: 1�t LEGAL REVIEW APPROVAL (If required in Agency's process) State Corrtact: Justin Shoemaker, Local Agency Liaison By 123 NW Flanders City Attorney Portland, OR 97249 603-731-8486 Date Justin.d.shoe a cer aOgdot.state.or.us Metro Contact: Olena Torula, Senior Regional Planner 600 NE Grand Ave Portland,OR 97232 503-813-7560 O[ena.Turula cC�.oreuonmetro-goy 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 13th 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 85th 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(x), 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(a-_)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(a_tigard-or.gov or assigned designee upon individual's absence. Agency shall notify the other Parties in writing of any contact information changes during the term of this Agreement. 24. Metro's Contact for this Project is Robert Spurlock, Senior Regional Planner, 600 NE Grand Ave, Portland, OR, 97232, (503) 813-7560, Robert.Spurlock(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 i Ij I' i I illil I State/Agency/Metro Agreement No.31030 CITY OF TIGARD,by and through Its STATE OF OREGON, by and through elected officials Its D artme of ransportation E By By V Hi w y Di 14 Administrator Title Date Date APPROVAL RECOMMENDED I i APPROVED AS TO LEGAL SUFFICIENCY By. Region 1 ManagdF By -----�-�— City Attorney Date bate By ..r CMAQ Program anagen, r L ASrr7nicY Contact: Active Transportation Sec ion Manager Mlke McCarthy, Project Manager 13125 SW Hail Blvd. Dale Tigard, OR 97223 503-718-2462 Ey rnikern@tigard-or.gov Rio&l Project Servlcas Manager METRO, by and through its elected Date ice ofilicials APP OVER T LEGAL By- au CI c Title B Q°Z Y Assistdrit Attomey G neral APPROVED AS TO LEGAL SUFFICIIENCY Dat _ I By State!contact: Metro Counsal Oregon Dept.ofTransportatfon Michele Thom, local Llalson Dake 123 NW Flanders i Metro Contact: Portland,OR 87209 Rub art Spurluok, Senior Regional Planner 50731-6279 600 NE Grand Ave Michele,r.thr�m�pdat.state.or.u�, Portland, OR,97232 (503)813-7560 Robert.Spuriock@orectonmetro, av, rl: 7 State/Agency/Metro Agreement No. 31030 CITY OF TIGARD, by and through its STATE OF OREGON, by and through elected fficial its Department of Transportation By By Title Highway Division Administrator ,�f�Y(�2 Date R a Date APPROVAL RECOMMENDED APPROVED AS TO LEGAL SUFFICIENCY By Region 1 Manager By 4— City Attorn Date Date 9 a'l- 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@tigard-or.gov Region 1 Project Services Manager METRO, by and through its elected Date officials APPROVED AS TO LEGAL By SUFFICIENCY Title By APPROVED AS TO LEGAL Assistant Attorney General 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 odot.state.or.us Portland, OR, 97232 (503) 813-7560 Robert.Spu rlock(D-oregonmetro.gov 7 Metro Contract 9342$4 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 503-718-2452 By mikem(cDtigard-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 OLState Contact: Metro C nsel Oregon Dept. of Transportation Date ` 1 Michele Thom, Local Liaison 123 NW Flanders Metro Contact: Portland, OR 97209 Robert Spurlock, Senior Regional Planner 503-731-8279 600 NE Grand Ave lMichele.r.thom(cDodot.state.or.us Portland, OR, 97232 (503) 813-7560 Robert..S2uriock_(c7oregonmetro.gov 7 State/Agency/Metro Agreement No. 31030 EXHIBIT A— Project Location Map 0 2 3., ci"„-ms ` G & ,bw 53RD aver, . ,aV'FIlP, _; § . 3.V .190 » ° ,.V.1.._m ; #- wemS ,aV .1., a, S / ]A-HJuMS { ` AMY (3,:! AAS Of ± § Z OP 0 , _� ©Q e ƒ S , dP � % . Ap . av lll6 {! & ` »#w/.s Z. Cr. I-IVH R, u,l0 a1 VH AAS G-y : + • § E K : $ © ¥ ` !§ ! ) x � -0 } �, [ -3a w5� » = 2 t {] l . } / 2j \ ! ; ! t & J ` oma = \ � g0 ] a ) 2 a . y51A. ) 8 State/Agency/Metro Agreement No. 31030 EXHIBIT A— Project Location Map 2 0 2 !, _ s \ ., ,.,,q.,.U« mS Q - M � \ / J ! 3# .J9@-«S __ _ - e _mft § � . � § " QJ ; e2 , vC.l. ME . ` a 25 z { 22 ) � � ( f ` . . eee . � � � : ] 2224 \ % ° 9 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/85th 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 Right 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 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 13th 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 State/Agency/Metro Agreement No. 31030 contract completion for construction. Partial billing (progress payment) shall be submitted to State within forty-five (45) days from date that costs are incurred. Invoices submitted after 45 days may not be eligible for reimbursement by FHWA. Agency acknowledges and agrees that State, the Oregon Secretary of State's Office, the federal government, and their duly authorized representatives shall have access to the books, documents, papers, and records of Agency which are directly pertinent to the Project Agreement for the purpose of making audit, examination, excerpts, and transcripts for a period ending on the later of six (6) years following the date of final voucher to FHWA or after resolution of any disputes under the Project Agreement. 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 ((2 CFR 200.333(c)). 13.Agency shall, upon State's written request for reimbursement in accordance with Title 23, CFR part 630.112(c) 1 and 2, as directed by FHWA, reimburse State for federal-aid funds distributed to Agency if any of the following events occur: a) Right of way acquisition is not undertaken or actual construction is not started by the close of the twentieth federal fiscal year following the federal fiscal year in which the federal-aid funds were authorized for right of way acquisition. Agency may submit a written request to State's Liaison for a time extension beyond the twenty (20) year limit with no repayment of federal funds and State will forward the request to FHWA. FHWA may approve this request if it is considered reasonable. b) Right of way acquisition or actual construction of the facility for which preliminary engineering is undertaken is not started by the close of the tenth federal fiscal year following the federal fiscal year in which the federal-aid funds were authorized. Agency may submit a written request to State's Liaison for a time extension beyond the ten (10) year limit with no repayment of federal funds and State will forward the request to FHWA. FHWA may approve this request if it is considered reasonable. 14.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 the Project is completed in conformance with approved plans and specifications. 15.State shall submit all claims for federal-aid participation to FHWA in the normal manner and compile accurate cost accounting records. State shall pay all reimbursable costs of the Project. Agency may request a statement of costs-to-date at any time by submitting a written request. When the actual total cost of the Project has been computed, State shall furnish Agency with an itemized statement of final STDPRO-2015.doc Rev. 04-28-2015 18 State/Agency/Metro Agreement No. 31030 costs. Agency shall pay an amount which, when added to said advance deposit and federal reimbursement payment, will equal one hundred (100) percent of the final total actual cost. Any portion of deposits made in excess of the final total costs of the Project, minus federal reimbursement, shall be released to Agency. The actual cost of services provided by State will be charged to the Project expenditure account(s) and will be included in the total cost of the Project. STANDARDS 16.Agency agrees that minimum design standards on all local agency jurisdictional roadway or street projects on the National Highway System (NHS) and projects on the non-NHS shall be the American Association of State Highway and Transportation Officials (AASHTO) standards and be in accordance with State's Oregon Bicycle & Pedestrian Design Guide (current version). Agency shall use either AASHTO's A Policy on Geometric Design of Highways and Streets (current version) or State's Resurfacing, Restoration and Rehabilitation (3R) design standards for 3R projects. Agency may use AASHTO for vertical clearance requirements on Agency's jurisdictional roadways or streets. 17.Agency agrees that if the Project is on the Oregon State Highway System or State- owned facility, that design standards shall be in compliance with standards specified in the current ODOT Highway Design Manual and related references. Construction plans for such projects shall be in conformance with standard practices of State and all specifications shall be in substantial compliance with the most current Oregon Standard Specifications for Highway Construction and current Contract Plans Development Guide. 18.Agency agrees that for all projects on the Oregon State Highway System or State- owned facility any design element that does not meet ODOT Highway Design Manual design standards must be justified and documented by means of a design exception. Agency further agrees that for all projects on the NHS, regardless of funding source; any design element that does not meet AASHTO standards must be justified and documented by means of a design exception. State shall review any design exceptions on the Oregon State Highway System and retains authority for their approval. FHWA shall review any design exceptions for projects subject to Focused Federal Oversight and retains authority for their approval. 19.Agency agrees all traffic control devices and traffic management plans shall meet the requirements of the current edition of the Manual on Uniform Traffic Control Devices and Oregon Supplement as adopted in Oregon Administrative Rule (OAR) 734-020-0005. Agency must obtain the approval of the State Traffic Engineer prior to the design and construction of any traffic signal, or illumination to be installed on a state highway pursuant to OAR 734-020-0430. 20.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 STDPRO-2015.doc Rev. 04-28-2015 19 State/Agency/Metro Agreement No. 31030 not limited to, right of way, environmental documents, plans and specifications, and utilities. PRELIMINARY & CONSTRUCTION ENGINEERING 21.Preliminary engineering and construction engineering may be performed by either a) State, b) Agency, c) State-approved consultant, or d) certified agency. Engineering work will be monitored by State or certified agency to ensure conformance with FHWA rules and regulations. Project plans, specifications and cost estimates shall be performed by either a) State, b) State-approved consultant or c) certified agency. State shall review and approve Project plans, specifications and cost estimates. State shall, at project expense, review, process and approve, or submit for approval to the federal regulators, all environmental statements. State or certified agency shall, if they prepare any of the documents identified in this paragraph, offer Agency the opportunity to review and approve the documents prior to advertising for bids. 22. Agency may request State's two-tiered consultant selection process as allowed by OAR 137-048-0260 to perform architectural, engineering, photogrammetry, transportation planning, land surveying and related services (A&E Services) as needed for federal-aid transportation projects. Use of the State's processes is required to ensure federal reimbursement. State will award and execute the contracts. State's personal services contracting process and resulting contract document will follow Title 23 CFR part 172, 2 CFR part 1201, ORS 279A.055, 279C.110, 279C.125, OAR 137-048-0130, OAR 137-048-0220(4) 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. No reimbursement shall be made using federal-aid funds for any costs incurred by Agency or the consultant prior to receiving authorization from State to proceed. 23.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. 24.State or certified agency shall prepare construction contract and bidding documents, advertise for bid proposals, and award all construction contracts. 25.Upon State's or certified agency's award of a construction contract, State or certified agency shall perform quality assurance and independent assurance testing in accordance with the FHWA-approved Quality Assurance Program found in State's Manual of Field Test Procedures, process and pay all contractor progress estimates, check final quantities and costs, and oversee and provide intermittent inspection services during the construction phase of the Project. STDPRO-2015.doc Rev. 04-28-2015 20 State/Agency/Metro Agreement No. 31030 26.State shall, as a Project expense, assign a liaison to provide Project monitoring as needed throughout all phases of Project activities (preliminary engineering, right-of- way acquisition, and construction). State's liaison shall process reimbursement for federal participation costs. REQUIRED STATEMENT FOR United States Department of Transportation (USDOT) FINANCIAL ASSISTANCE AGREEMENT 27.By signing the Federal-Aid Agreement to which these Federal Standard Provisions are attached, Agency agrees to adopt State's DBE Program Plan, available at http://www.oregon.gov/ODOT/CS/CIVILRIGHTS/pages/sbe/dbe/dbe program.aspx# plan. Agency shall not discriminate on the basis of race, color, national origin, or sex in the award and performance of any USDOT-assisted contract or in the administration of its DBE program or the requirements of 49 CFR part 26. Agency agrees to take all necessary and reasonable steps under 49 CFR part 26 to ensure nondiscrimination in the award and administration of USDOT-assisted contracts. State's DBE program, as required by 49 CFR part 26 and as approved by USDOT, is incorporated by reference in this Project Agreement. Implementation of this program is a legal obligation and failure to carry out its terms shall be treated as a violation of this Project Agreement. Upon notification to the recipient of its failure to carry out its approved program, the USDOT may impose sanctions as provided for under part 26 and may, in appropriate cases, refer the matter for enforcement under 18 United States Code (USC) 1001 and/or the Program Fraud Civil Remedies Act of 1986 (31 USC 3801 et seq.). Disadvantaged Business Enterprises (DBE) Obligations 28.State and Agency agree to incorporate by reference the requirements of 49 CFR part 26 and State's DBE Program Plan, as required by 49 CFR part 26 and as approved by USDOT, into all contracts entered into under this Project Agreement. The following required DBE assurance shall be included in all contracts: "The contractor or subcontractor shall not discriminate on the basis of race, color, national origin, or sex in the performance of this contract. The contractor shall carry out applicable requirements of Title 49 CFR part 26 in the award and administration of federal-aid contracts. Failure by the contractor to carry out these requirements is a material breach of this contract, which may result in the termination of this contract or such other remedy as Agency deems appropriate. Each subcontract the contractor signs with a subcontractor must include the assurance in this paragraph (see 49 CFR 26.13(b))." 29.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. STDPRO-2015.doc Rev. 04-28-2015 21 State/Agency/Metro Agreement No. 31030 30.The Parties hereto agree and understand that they will comply with all applicable federal, state, and local laws, regulations, executive orders and ordinances applicable to the work including, but not limited to, the provisions of ORS 279C.505, 279C.515, 279C.520, 279C.530 and 2796.270, incorporated herein by reference and made a part hereof; Title 23 CFR parts 1.11, 140, 635, 710, and 771; Title 49 CFR parts 24 and 26; 2 CFR 1201, Title 23, USC, Federal-Aid Highway Act; Title 41, Chapter 1, USC 51-58, Anti-Kickback Act; Title 42 USC; Uniform Relocation Assistance and Real Property Acquisition Policy Act of 1970, as amended, the provisions of the FAPG and FHWA Contract Administration Core Curriculum Participants Manual & Reference Guide. State and Agency agree that FHWA-1273 Required Contract Provisions shall be included in all contracts and subcontracts verbatim and not by reference. RIGHT OF WAY 31.Agency and the consultant, if any, agree that right of way activities shall be in accordance with the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, as amended, ORS Chapter 35, FAPG, CFR, and the ODOT Right of Way Manual, Title 23 CFR part 710 and Title 49 CFR part 24. State, at Project expense, shall review all right of way activities engaged in by Agency to ensure compliance with all laws and regulations. 32.State is responsible for proper acquisition of the necessary right of way and easements for construction and maintenance of projects. Agency may perform acquisition of the necessary right of way and easements for construction and maintenance of the Project provided Agency or the consultant are qualified to do such work, as required by the ODOT Right of Way Manual, and Agency has obtained prior approval from State's Region Right of Way office to do such work. 33.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. If the Project has the potential of needing right of way, to ensure compliance in the event that right of way is unexpectedly needed, a right of way services agreement will be required. State, at Project expense, shall be responsible for requesting the obligation of project funding from FHWA. State, at Project expense, shall be responsible for 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 State's Liaison, who will forward the request to State's Region Right of Way office on all projects. Agency must receive written authorization to proceed from State's Right of Way Section prior to beginning right of way activities. All projects must have right of way certification coordinated through State's Region Right of Way office to declare compliance and project readiness for construction (even for projects where no federal funds were used for right of way, but federal funds were used elsewhere on a project). Agency shall contact State's Liaison, who will contact State's Region Right of Way office for additional information or clarification on behalf of Agency. STDPRO-2015.doc Rev. 04-28-2015 22 State/Agency/Metro Agreement No. 31030 34.Agency agrees that 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. 35.Agency ensures that all project right of way monumentation will be conducted in conformance with ORS 209.155. 36.State and Agency grants each other authority to enter onto the other's right of way for the performance of non-construction activities such as surveying and inspection of the Project. RAILROADS 37.Agency shall follow State established policy and procedures when impacts occur on railroad property. The policy and procedures are available through the State's Liaison, who will contact State's Railroad Liaison on behalf of Agency. Only those costs allowable under Title 23 CFR part 140 subpart I, and Title 23 part 646 subpart B shall be included in the total Project costs; all other costs associated with railroad work will be at the sole expense of Agency, or others. Agency may request State, in writing and at Project expense, to provide railroad coordination and negotiations. However, State is under no obligation to agree to perform said duties. UTILITIES 38.Agency shall follow State established statutes, policies and procedures when impacts occur to privately or publicly-owned utilities. Policy, procedures and forms are available through the State Utility Liaison or State's Liaison. Agency shall provide copies of all signed utility notifications, agreements and Utility Certification to the State Utility Liaison. Only those utility relocations, which are eligible for reimbursement under the FAPG, Title 23 CFR part 645 subparts A and B, shall be included in the total Project costs; all other utility relocations shall be at the sole expense of Agency, or others. Agency may send a written request to State, at Project expense, to arrange for utility relocations/adjustments lying within Agency jurisdiction. This request must be submitted no later than twenty-one (21) weeks prior to bid let date. However, State is under no obligation to agree to perform said duties. Agency shall not perform any utility work on state highway right of way without first receiving written authorization from State. GRADE CHANGE LIABILITY 39.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. STDPRO-2015.doc Rev. 04-28-2015 23 State/Agency/Metro Agreement No. 31030 40.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. 41.Agency, if a City, by execution of the Project Agreement, gives its consent as required by ORS 373.030(2) to any and all changes of grade within the City limits, and gives its consent as required by ORS 373.050(1) to any and all closure of streets intersecting the highway, if any there be in connection with or arising out of the Project covered by the Project Agreement. MAINTENANCE RESPONSIBILITIES 42.Agency shall, at its own expense, maintain operate, and provide power as needed upon Project completion at a minimum level that is consistent with normal depreciation and/or service demand and throughout the useful life of the Project. The useful life of the Project is defined in the Special Provisions. State may conduct periodic inspections during the life of the Project to verify that the Project is properly maintained and continues to serve the purpose for which federal funds were provided. Maintenance and power responsibilities shall survive any termination of the Project Agreement. In the event the Project will include or affect a state highway, this provision does not address maintenance of that state highway. CONTRIBUTION 43.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. 44.With respect to a Third Party Claim for which State is jointly liable with Agency (or would be if joined in the Third Party Claim), State shall contribute to the amount of expenses (including attorneys' fees), judgments, fines and amounts paid in settlement actually and reasonably incurred and paid or payable by Agency in such proportion as is appropriate to reflect the relative fault of State on the one hand and of Agency on the other hand in connection with the events which resulted in such expenses, judgments, fines or settlement amounts, as well as any other relevant equitable considerations. The relative fault of State on the one hand and of Agency on the other hand shall be determined by reference to, among other things, the Parties' relative intent, knowledge, access to information and opportunity to correct or prevent the circumstances resulting in such expenses, judgments, fines or STDPRO-2015.doc Rev. 04-28-2015 24 State/Agency/Metro Agreement No. 31030 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. 45.With respect to a Third Party Claim for which Agency is jointly liable with State (or would be if joined in the Third Party Claim), Agency shall contribute to the amount of expenses (including attorneys' fees), judgments, fines and amounts paid in settlement actually and reasonably incurred and paid or payable by State in such proportion as is appropriate to reflect the relative fault of Agency on the one hand and of State on the other hand in connection with the events which resulted in such expenses, judgments, fines or settlement amounts, as well as any other relevant equitable considerations. The relative fault of Agency on the one hand and of State on the other hand shall be determined by reference to, among other things, the Parties' relative intent, knowledge, access to information and opportunity to correct or prevent the circumstances resulting in such expenses, judgments, fines or settlement amounts. Agency's contribution amount in any instance is capped to the same extent it would have been capped under Oregon law, including the Oregon Tort Claims Act, ORS 30.260 to 30.300, if it had sole liability in the proceeding. ALTERNATIVE DISPUTE RESOLUTION 46.The Parties shall attempt in good faith to resolve any dispute arising out of this Project Agreement. In addition, the Parties may agree to utilize a jointly selected mediator or arbitrator (for non-binding arbitration) to resolve the dispute short of litigation. WORKERS' COMPENSATION COVERAGE 47.All employers, including Agency, that employ subject workers who work under this Project Agreement in the State of Oregon shall comply with ORS 656.017 and provide the required Workers' Compensation coverage unless such employers are exempt under ORS 656.126. Employers Liability Insurance with coverage limits of not less than five hundred thousand ($500,000) must be included. Agency shall ensure that each of its contractors complies with these requirements. LOBBYING RESTRICTIONS — pursuant to Form FHWA-1273, Required Contract Provisions 48.Agency certifies by signing the Project 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 STDPRO-2015.doc Rev. 04-28-2015 25 State/Agency/Metro Agreement No. 31030 extension, continuation, renewal, amendment, or modification of any federal contract, grant, loan, or cooperative agreement. b) If any funds other than federal appropriated funds have been paid or will be paid to any person for influencing or attempting to influence an officer or employee of any federal agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with this federal contract, grant, loan, or cooperative agreement, the undersigned shall complete and submit Standard Form-LLL, "Disclosure Form to Report Lobbying," in accordance with its instructions. c) The undersigned shall require that the language of this certification be included in the award documents for all subawards at all tiers (including subgrants, and contracts and subcontracts under grants, subgrants, loans, and cooperative agreements) which exceed one hundred thousand dollars ($100,000), and that all such subrecipients shall certify and disclose accordingly. d) This certification is a material representation of fact upon which reliance was placed when this transaction was made or entered into. Submission of this certification is a prerequisite for making or entering into this transaction imposed by Title 31, USC Section 1352. e) Any person who fails to file the required certification shall be subject to a civil penalty of not less than ten thousand dollars ($10,000) and not more than one hundred thousand dollars ($100,000) for each such failure. STDPRO-2015.doc Rev. 04-28-2015 26 STATE OF OREGON INTEROFFICE MEMO Department of Transportation Right of Way Phone: (503)986-3643 Fax: (503)986-3625 TO: John Boals DATE: August 4, 2020 Interim State Right of Way Manager FROM: Christy Wood RM/ Management & Policy Advisor SUBJECT: #34320 - Fanno Creek Trail: Woodard Park- Bonita Rd/85th Ave - Tualatin Br. Brief Summary/Background of Document Attached for your signature is a ROWSA between ODOT and the City of Tigard. The Administrators of the project are both parties and the tasks are a mixture performed by both. The project itself is the following: Construct four sections of the Fanno Creek Trail from Woodward Park to Bonita Road and 85th Avenue to Tualatin River Bridge in Tigard. Constructing these sections will fill in key gaps on the Fanno Creek Trail and provide a safe, comfortable, and reasonably direct travel experience for users. Who Has Reviewed and Approved It This agreement has been reviewed by Kat Halpenny, Grant Casebeer, worked on by Damon Gray and myself. Recommendation I recommend that the State RM Manager sign this ROWSA. If you have any other questions or need further documentation, please let me know and I will be glad to provide that to you. Thank you.