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State of Oregon - Surface Transportation Project (Wash. Sq. Dr/Tiedeman) -0 r o n Oi,,aen.Department of Transportation 1 g Support Services Theodore R Kulongoski;Governor Procurement Office 455 Airport Rd. SE, Bldg. K Salem, OR 97301-5348 June 14, 2006 JUN 16 2006 no City of Tigard LAITY OF TIGARD Attention: Agustin P. Duenas, P.E. 13125 SW Hall Blvd. Tigard, OR 97233 Dear Mr. Duenas, We have enclosed one original for your files of the fully executed Amendment#1 of Agreement #19146 for our upcoming project which covers Washington Square Dr: Tiedeman Ave. This agreement has been signed by all parties. We have retained one signed original of the fully executed Amendment#1 of Agreement#19146 on file at the Oregon Department of Transportation. If you have any questions regarding this Agreement, please contact me at my e-mail address susan.c.herring@odot.state.or.us or at (503) 986-2731. Sincerely, Z44� Susan Herring, Technical/Administrative Assistant ODOT Procurement Office Enclosure Misc. Contracts &Agreements No. 19,146 AMENDMENT NO. 1 SURFACE TRANSPORTATION PROJECT— METRO ONLY Washington Square Dr.,—, Tiedeman Ave. (Tigard) The State of Oregon, acting by and through its Department of Transportation, hereinafter referred to as State; the City of Tigard, acting by and through its Elected Officials, hereinafter referred to as Agency; and Washington. County, a political subdivision of the State of Oregon, acting by and through its Board of County Commissioners, hereinafter referred to as County, entered into Local Agency Agreement No. 19,146 on December 23, 2002. Said agreement covers the widening of Greenburg Road from Shady Lane to Tiedeman Avenue with bike lanes, sidewalks, and signal modifications, hereinafter referred to as "Project." It has now been determined by State and Agency that the agreement referenced above, although remaining in full force and effect, shall be amended by this agreement to remove the fixed funding for PE and right-of-way, add funding and up-date standard language. Therefore the above mentioned agreement shall be amended as follows: Page 1, Recitals, Paragraph 2, which reads: 2. By the authority granted in ORS 190.110, 366.770 and 366.775, State may enter into cooperative agreements with the counties and cities 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." Shall be deleted in its entirety and amended to read: "2. By the authority granted in 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." Insert new Paragraph 10 of Terms of Agreement, Page 3, to read as follows: "3. The federal funding for this Project is contingent upon approval by the FHWA. Any work performed prior to acceptance by FHWA will be considered nonparticipating and paid for at Agency expense." Page 1, Terms of Agreement, Paragraph 2, which reads: 41 2. The Project shall .be conducted as -a part of* the Federal-Aid Surface Transportation Program, Title 23, United,,States Code. The total Project cost is estimated at $2,725;000. This agreement sets the terms and funding for the Preliminary Engineering (PE) and right-of-way acquisition phases of the Project only. The Metro Priorities 2000 STP funds for.this Project shall be limited to $270,000 and are for PE. Key #11436 M C &A No. 19,1:46,Amendment.No. 1 CITY OF TIGARD &WASHINGTON COUNTY The Metro Priorities 2002 STP funds are limited to $390,000 and are for Right-of-Way. The project will be financed with Surface Transportation Program funds at the maximum allowable federal participating amount,.with Agency providing the match and any non-participating costs. The terms for subsequent phases of the Project shall be set by future agreement(s). The estimate for the total project cost is subject to change." Shall be deleted In Its entirety and amended to read: "2. The r Project shall .be conducted as a part of the Federal-Aid Surface Transportation Program (STP), under Title 23,: United States Code. The total Project cost is estimated at $4,436,000, which is subject to change. The STP local funds for this Project shall be limited to $1,660,000. The project will be financed with STP funds at the maximum allowable federal participating amount, with Agency providing the match and.any non-participating costs, including. all costs in excess of the available federal funds." Page 2, TERMS OF AGREEMENT, Paragraph 3 which reads: `3. The term of this agreement shall begin on the date all required signatures are obtained and shall terminate within six calendar years following that date." Shall be deleted In its entirety and amended to read: 99 3. 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 by December 23, 2014, whichever is sooner. Page 2, TERMS OF AGREEMENT, Paragraph 4-d which reads: "d. If State fails to receive funding, appropriations, limitations or other expenditure authority at levels sufficient to pay for the work provided in the agreement." Shall be deleted in its entirety and amended to read: "d. If State fails. to receive funding, appropriations, limitations or other expenditure authority sufficient to allow. State, in the exercise of its reasonable administrative discretion, to continue to make payments for performance of this Agreement." r 2 M C &A No. 19,146, Amendment No. 1 CITY OF TIGARD &WASHINGTON COUNTY Page 2, Paragraph 5 oflerms of Agreement, which reads: "5. 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." Shall be deleted In its entirety and amended to read: "5. 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." Page 3, Paragraph 6 of Terms of Agreement which reads: "6. Agency, as a recipient of grant funds, pursuant to this agreement with the State, shall assume sole liability for Agency's breach of the conditions of the grant, and shall, upon Agency's breach of grant conditions that requires the State to return funds to the FederaV Highway Administration, the grantor, 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." Shall be deleted in its entirety and amended to read: "6. 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,.including but not limited to Article XI, Section 10 of the Oregon Constitution, 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." 3 M C &AM. 19,146, Amendment No. 1 CITY OF TIGARD&WASHINGTON COUNTY IN WITNESS WHEREOF, the parties hereto have set their, hands and affixed their seals as of the day and year hereinafter written. This Project is in the 2006-2009 Statewide Transportation. Improvement Program that was approved by the Oregon,Transportation commission on August,17, 2005. (Key No. 11436). The Oregon Transportation Commission on June 18, 2003, approved Delegation Order No. 2, which authorizes the Director to approve and execute agreements for day-to-day operations when the work is related to a project included in the. Statewide Transportation Improvement Program or aline item in the biennial budget approved by the Commission. On November 10, 2004, the. Director of:the Oregon Department of Transportation approved Subdelegation Order No. 2, in which the !Director delegates to the Deputy. Director, Highways the authority to approve and sign agreements.over$75,,000 when the work is related to a project included in the Statewide Transportation Improvement Program, or in other system plans approved by the Oregon Transportation Commission or in a line item in the biennial budget approved by the Director. 4 M C &A No. 19,146, Amendment No. 1 CITY OF TIGARD &WASHINGTON COUNTY APP VAL RECOMMENDED STATE OF OREGON, by and through its Department of Transportation By Region 1 Manager .r By . '~ Date Depu4blrector, Highways By Date Tech Sery Mgr/Chief Engineer Date CITY OF TIGARD, by and through its Elected Officials APPROVED AS TO B Y LEGA"UFFICENCY Ma or By PA4. CE Assistant Attorney General Recorder Date �l 71�� Date APPROVED AS TO LEGAL SUFFICENCY WASHINGTON;COUNTY, by and By N/ through its Elected Officials City Attorney By Date /Chair Date APPROVED AS TO LEGAL SUFFICENCY AGENCY Billing Address: CITY OF TIGARD B ZIAP 13125 SW Hall Blvd. CouW Attorney Tigard, OR 97223 Date 511pla APPROVED WASHINGTON COUNTY BOARD OF COMMISSIONERS MINUTE ORDER a __ D!o 949L DATE 5 By &rh. _ -4 Lkibng� CLERK Of THE BOARD' -Ore ^ ®,nn Department of Transportation r z Transportation Building John A.Kitzhaber,MD.,Governor 355 Capitol St.NE Salem,Oregon 97301 f' FILE CODE: AGR January 2, 2003 ods City of Tigard Attn: Wheatley, City Recorder 13125 SW H-alHalyd. Tigard, OR 97223` Enclosed for your records is two fully executed copies of Local Agency Agreement number 19146. This agreement provides funds for improvements to Greenburg Road. We have retained a fully executed copy of this agreement for the Department of Transportation's files. JIZAL � V Trish Barker, Agreements Specialist Construction Contracts Unit Roadway Engineering Section Enclosure TB:plg Form 734-3122(499) Misc. Contracts &Agreements No. 19,146 LOCAL AGENCY AGREEMENT SURFACE TRANSPORTATION PROJECT— METRO Only Greenburg Rd Washington Square Dr. —Tiedeman Ave. (Tigard) 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"; the CITY OF TIGARD, acting by and through its Elected Officials, hereinafter referred to as "Agency"; and WASHINGTON COUNTY, a political subdivision of the State of Oregon, acting by and through its Board of County Commissioners, hereinafter referred to as "County". RECITALS 1. The portion of Greenburg Road south of Highway 217 is a part of the City of Tigard street system under the jurisdiction and control of the City of Tigard. The portion of Greenburg Road north of Highway 217 is a part of the county road system under the jurisdiction and control of the Washington County. 2. By the authority granted in ORS 190.110, 366.770 and 366.775, State may enter into cooperative agreements with the counties and cities for the performance of work on certain types of improvement projects with the allocation of costs on terms and conditions mutually agreeable to the contracting parties. . NOW THEREFORE, the premises being in general as stated in the foregoing recitals, it is agreed by and between the parties hereto as follows: TERMS OF AGREEMENT 1. Under such authority, State and Agency plan and propose to widen Greenburg Road from Shady Lane to Tiedeman Ave to a 5-lane facility with bike lanes and sidewalks on both sides, modify signals, signing and striping for the widened roadway, acquire right-of-way, and construct the appropriate transitions at the approaches south and west of the Tiedeman intersection, hereinafter referred to as "Project". The location of the project is approximately as shown on the sketch map attached hereto, marked Exhibit A, and by this reference made a part hereof. 2. The Project shall be conducted. as a part of the Federal-Aid Surface Transportation Program, Title '23, United States Code. The total Project cost is estimated at $2,725,000. This agreement sets the terms and funding for the Preliminary Engineering (PE) and right-of-way acquisition phases of the Project only. The Metro Priorities 2000 STP funds for this Project shall be limited to $270,000 and are for PE. M C &A No. 19,146 CITY OF TIGARD Key#11436 The. Metro Priorities 2002 STP funds are limited to $390;0.00 and are for Right-of-Way. The project will be financed with Surface Transportation Program funds at the maximum allowable federal participating amount, with Agency providing the match and any non- participating costs. The terms for subsequent phases of the Project shall be set by future agreement(s). The estimate for the total project cost is subject to change. 3. The term of this agreement shall begin on the date all required signatures are obtained and shall terminate within six calendar years following that date. 4. This agreement may be terminated by mutual written consent of both parties. 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 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 at levels sufficient to pay for the work provided in the agreement. e. If Federal or state laws, regulations or guidelines are modified or interpreted in such a way that either the work under this agreement is prohibited or State is prohibited from paying for such work from the planned funding source. Any termination of this agreement shallnot prejudice any rights or obligations accrued to the parties prior to termination. 5. 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. 2 M C &A No. 19,146 CITY OF TIGARD The parties hereto mutually agree to the terms and conditions set forth in Attachments 1 and 2. 6. Agency, as a recipient of grant funds, pursuant to this agreement with the State, shall assume sole liability for Agency's breach of the conditions of the grant, and shall, upon Agency's breach of grant conditions that requires the State to return funds to the Federal Highway Administration, the grantor, 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. Agency shall enter into and execute this agreement during a duly authorized session of its City Council. 8. County shall enter into and execute this agreement during a duly authorized session of its Board of County Commissioners. 9. 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. IN WITNESS WHEREOF, the parties hereto have set their hands and affixed their seals as of the day and year hereinafter written. The Oregon Transportation Commission on October 13, 1999, approved this project as a part of the 2000-2003 Statewide Transportation Improvement Program, Page 41, Key No.11436. The Oregon Transportation Commission on January 16, 2002, approved Delegation Order No. 2, which authorizes the Director to approve and execute agreements for day- to-day operations when the work is related to a project included in the Statewide Transportation Improvement Program or a line item in the biennial budget approved by the Commission. On January 31, 2002, the Director of the Oregon Department of Transportation approved Subdelegation Order No. 2, in which the Director delegates authority to the 3 M C &A No. 19,146 CITY OF TIGARD Executive Deputy Director for Highways to approve and execute agreements over $75,000 when the work is related to a project included in the Statewide Transportation Improvement Program, other system plans approved by the Commission such as the Traffic Safety Performance Plan, or in a line item in the approved biennial budget. APPROVAL RECOMMENDED STATE OF OREGON, by and through its Department of Transportation By gion 1 Manager By Date Executive Deputy Dire tor. DateZ- By -PprTech Serv. Mgr./. ief Engineer Date: zz3 /dDz CITY OF TIGARD, by and through its Elected Officials APPROVED AS TO By LEGAL UFFICENl�CYY Mayor B 'Y B 3 ;� Assistant Attorney General Recorder Date 121/e;l G Z Date 11-27-62 APPROVED AS TO WASHINGTON COUNTY, by and LEGAL SUFFICIENCY through its Elected icials By Byhair City Attorney !� Date Date /5) OZ AGENCY Billing Address: APPROVED AS TO CITY OF TIGARD LEGAL S FFICENCY 13125 SW Hall Blvd Tigard, OR 97223 LEGAL County Attorney APPROVED WASHINGTON COUNTY Date BOARD OF COMMISSIONERS :MINUTE ORDER H ..... .-. ., `!�.........� 4 I :., 1...x.5cofi''Di ARD �.o. ..... �.�...... l' arbc�.t a !,41L r'6t Cplsoom S*N1 radley-IkIo er S IC QCt_ j o Z rp a �1 P1 f 0 ma la �'Ct Sir PI e � It, 217 a' i Q et n re bu Sw TIg rd St Sc a ul la t ��5S lintco w � Wood Park 1g�rd sR 1 , A. L�,Sy 0Tr acre .,^+ H S[ yz ECoParJc '�\_--• S1ti+F SC 217 Sw- n bung I� f w.hAs;DonaId St rnarrr � martcU Scole:l"= 100' d rR-4K _ ' NODFy WOBTM OWN ' BETWE04 WAsHoOTON SWAIIG DWE 1 AND CASCADE AVOW - I %, •/ 3 GREENBURG ROAD IMPROVEMENTS ®� }• (Washington Square Drive to Tledeman Avenue) +\_ Conceptual Design ti 9 fi AND ppCONOTNYCTIOM /� '•O� . v )�• � `,_` -�<.- tea- \w +� -�""�..._ - tea.,.,.-�.-„r.=•>,� - .�” EXHIBIT "A" ATTACHMENT NO. 1 to Agreement No.. 19,146 SPECIAL PROVISIONS 1. Agency shall, as a federal-aid participating preliminary engineering function, conduct the necessary field surveys, environmental studies, traffic investigations, foundation explorations, and hydraulic studies, assist State in the acquisition of any necessary right of way, identify and obtain all required permits, and perform all preliminary engineering and design work required to produce final plans, preliminary/final specifications and cost estimates. 2. In the event that Agency elects to engage the services of a personal services consultant to perform any work covered under this agreement, Agency and Consultant shall enter into a Personal Services Contract approved by State's Purchasing and Contracts Unit Manager or designee (Salem). Said contract must be reviewed and approved by the Purchasing and Contracts Unit Manager or designee prior to beginning any work. This review includes, but is not limited to the Request for Proposal, Statement of Work, advertisement and all contract documents. This review and approval is required to ensure federal reimbursement. 3. State may make available Region 1's On-Call PE, Design and Construction Engineering Services consultant for Local Agency Projects upon written request. If Agency chooses to use said services, it agrees to manage the work done by the consultant and make funds available to the State for payment of those services. All eligible work shall be a federally participating cost and included as part of the total cost of the project. 4. State shall retain complete jurisdiction and control of the timing established for the operation of the traffic signals at both north and south bound ramps. . 5. State, Agency and County agree that a mutual review of the proposed plans will be conducted for State and County concurrence to insure that safe and acceptable operating conditions are maintained on the segments of State and County right-of-way within the project limits. 6. The project shall be designed to State's standards and practices contained or referenced in the current version of ODOT Highway Design Manual and the American Association of State. Highway and Transportation Officials Standards and Specifications for Highway Bridges, as modified by State's Bridge Section Office Practice Manual. All specifications for the project shall be in substantial compliance with the most current "Oregon Standard Specifications;for Highway Construction". Through design process Agency may request modifications in accordance with State procedures. Such design request must be approved by State and/or County (if on County facility). 5 Page 2, Special Provisions M C &A No. 19,146 7. Paragraph 21 on page 4 of the Standard Provisions shall be amended to read: State, Agency and County grant each other authority to enter onto the other's right-of- way for the performance of all necessary work associated with the project. 8. Agency may apply to State for design exceptions as allowed for and in accordance with State procedures. 10. The existing maintenance and power responsibilities within the project limits shall remain in place unless changes have been negotiated and agreed to by all parties. Maintenance and power responsibilities shall survive any termination of this agreement. 6 ATTACHMENT NO. 2 STANDARD PROVISIONS JOINT OBLIGATIONS PROJECT ADMINISTRATION L State(ODOT)is acting to fulfill itsresponsibility to the Federal Highway Administration (FHWA) by the administration of this project, and 'Agency (Le: county, city, unit of local government, or other state agency) hereby agrees that State shall have full authority to cant' out this administration. If requested by Agency or if deemed necessary by State.in.order to meet .its obligations to FHWA, State will further act for the Agency in other .matters pertaining,to the project. State and Agency shall actively cooperate in fulfilling the requirements of the Oregon Action Plan., Agency shall, if necessary, appoint anddirect the _activities of a Citizen's Advisory Committee and/orTechnical Advisory Committee;conduct a hearing.and recommend the preferred alternative.:State,and Agency shall each assign a liaisonperson to coordinate activities and assure thaf 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 for FHWA prior to advertisement for bid proposals, regardless,of the source of funding for construction. PRELIMINARY-:& CONSTRUCTION ENGINEERING 3. , State, Agency, or others mayperform preliminary and construction engineering: If Agency or others perform the engineering, State will monitor the work for conformance with 'FHWA rules and regulations. In the event that Agency elects to engage the services of a personal service consultant to perform any work covered by this agreement, -Agency and Consultant shallenter into a State reviewed and approved personal service contract-process and resulting contract document. State must concur in the contract prior to beginning any work. State's personal service contracting process and resulting contract document will follow Title 23 Code of Federal Regulations (CFR) 172, Title 49 CFR 18,-ORS 279.05.1, the'current State Administrative Rules and ODOT Personal Services Contracting Procedures as approved by the Federal Highway Administration (FHWA).' Such personal service- contract(s)"shall contain a description of the 'work to �be performed; a project schedule, and the method of payment. Subcontracts shall contain all required provisions of Agency as outlined in the agreement. No reimbursement shall be made using federal=aid funds for any costs incurred by Agency or, its consultant prior to receiving authorization from ,State to proceed. . Any amendments to such contracts)also require State's approval. 4. On all construction projects where State is the signatory party to the contract, and•:where Agency is doing the construction engineering and project management, Agency, subject to any limitations imposed by State law and the Oregon Constitution, agrees to accept all responsibility, defend STDPRO-2000.doc - Rev. 8-8-2001 lawsuits, indemnify and hold State harmless, for all tort claims, contract claims, or any other lawsuit arising out of the contractor's work or Agency's supervision of the project. REQUIRED STATEMENT FOR USDOT FINANCIAL ASSISTANCE AGREEMENT 5. If as a condition of assistance the Agency has submitted and the US Department of Transportation has approved a Disadvantaged Business Enterprise Affirmative Action Program which the Agency agrees to carry out, this affirmative action program is incorporated into the financial assistance agreement by reference. That program shall be treated as a legal obligation and failure to carry out its terms shall be treated as a violation of the financial assistance agreement. Upon notification to the Agency of its failure to carry out the approved program, the US Department of Transportation shall impose such sanctions as noted in Title 49, Code of Federal Regulations, Part 26, which sanctions may include termination of the agreement or other measures that may affect the ability of the Agency to obtain future US Department of Transportation financial assistance. 6. DBE Obligations. State and its contractor agrees to ensure that Disadvantaged Business Enterprises as defined in 49 CFR 26 have the opportunity to participate in the performance of contracts and subcontracts financed in whole or in part with Federal funds. In this regard, Agency shall take all necessary and reasonable steps in accordance with 49 CFR 26 to ensure that Disadvantaged Business Enterprises have the opportunity to compete for and perform contracts. Neither State nor Agency and its contractors shall discriminate on the basis of race, color, national origin or sex in the award and performance of federally-assisted contracts. The Agency shall carry out applicable requirements of 49 CFR Part 26 in the award and administration of such contracts. Failure by the Agency 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 ODOT deems appropriate. The DBE Policy Statement and Obligations shall be included in all subcontracts entered into under this contract. 7. The Agency further agrees to comply with all applicable civil rights laws, rules and regulations, including 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. 8. 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 QRS 279.312, 279.314, 279.316, 279.320 and 279.555, incorporated herein by reference and made a part hereof;Title 49 CFR,Parts 26 and 90, Audits of State and Local Governments; 49 CFR Parts 18 and 24; 23 CFR Part 771; Title 41, USC, Anti-Kickback Act; Title 23, USC, Federal-Aid Highway Act; 42 USC, Uniform Relocation Assistance and Real Property Acquisition Policy Act of 1970, as amended; provisions of Federal-Aid Policy Guide (FAPG), Title 23 Code of Federal Regulations(23 CFR) 1.11,710, and 140; and the Oregon Action Plan. STDPRO-2000.doc 2 Rev. 8/8/2001 STATE OBLIGATIONS PROJECT FUNDING REQUEST 9. State shall submit a project funding request to the FHWA with a request for approval of federal-aid participation in all engineering, right-of-way acquisition, eligible utility relocations and/or construction work for the project. No work shall proceed on any activity in which federal-aid participation is desired until such approval has been obtained. The program shall include services to be provided by State, Agency, or others. State shall notify Agency in writing when authorization to proceed has been received from the FHWA. Major responsibility for the various phases of the project will be as outlined in the Special Provisions. All work and records of such work shall be in conformance with FHWA rules and regulations and the Oregon Action Plan. FINANCE 10. State shall, in the first instance, pay all reimbursable costs of the project, submit all claims for federal-aid participation to the FHWA in the normal manner and compile accurate cost accounting records. Agency may request a statement of costs to date at any time by submitting a written request. When the actual total cost of the project has been computed, State shall furnish Agency with an itemized statement of final costs. Agency shall pay an amount which, when added to said advance deposit and federal reimbursement payment, will equal 100 percent of the final total actual cost. Any portion of deposits made in excess of the final total costs of project, minus federal reimbursement, shall be released to Agency. The actual cost of services provided by State will be charged to the project expenditure account(s)and will be included in the total cost of the project. PROJECT ACTIVITIES 11. State shall, if the preliminary engineering work is performed by Agency or others, review and process or approve all environmental statements, preliminary and final plans, specifications and cost estimates. State shall, if they prepare these documents, offer Agency the opportunity to review and approve the documents prior to advertising for bids. 12. 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. 13. State shall prepare contract and bidding documents, advertise for bid proposals, and award all contracts. 14. Upon State's award of a construction contract, State shall perform independent assurance testing in accordance with State and FHWA Standards, process and pay all contractor progress estimates, STDPRO-2000.doc 3 Rev. 8/8/2001 check final quantities and costs, and oversee and provide intermittent inspection services during the construction phase of the project. 15. The State shall, as a project expense, assign a liaison person to provide project monitoring as needed throughout all phases of project activities (preliminary engineering, right-of-way acquisition, and construction). The liaison shall process reimbursement for federal participation costs. RIGHT-OF-WAY 16. State is responsible for proper acquisition of the necessary right-of-way and easements for construction and maintenance of the project. Agency may perform acquisition of the necessary right- of-way and easements for construction and maintenance of the project, provided Agency (or Agency's consultant) are qualified to do such work as required by the ODOT Right of Way Manual and have obtained prior approval from ODOT Region Right of Way office to do such work. 17. Regardless of who acquires or performs any of the right-of-way activities, a right-of-way services agreement shall be created by ODOT Region Right of Way office setting forth the responsibilities and activities to be accomplished by each party. State shall always be responsible for requesting project funding, coordinating certification of the right-of-way, and providing oversight and monitoring. Funding authorization requests for federal right-of-way funds must be sent through the Region Right of Way offices on all projects. All projects must have right-of-way certification coordinated through Region Right of Way offices (even for projects where no federal funds were used for right-of-way, but federal funds were used elsewhere on the project). Agency should contact the Region Right of Way office for additional information or clarification. 18. State shall review all right-of-way activities engaged in by Agency to assure compliance with applicable laws and regulations. Agency agrees that right-of-way activities shall be in accord with the Uniform Relocation Assistance & Real Property Acquisition Policy Act of 1970, as amended, ORS 281.060 and ORS Chapter 35, FHWA Federal Aid Policy Guide, State's Right of Way Manual and the Code of Federal Regulations,Title 23, Part 710 and Title 49, Part 24. 19. If any real property purchased with federal-aid participation is no longer needed for the originally authorized purpose, the disposition of such propdrty 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. 20. Agency insures that all project right-of-way monumentation will be conducted in conformance with ORS 209.150. 21. State and Agency grants each other authority to enter onto the other's right-of-way for the performance of the project. STDPRO-2000.doc 4 Rev. 8/8/2001 AGENCY OBLIGATIONS FINANCE 22. Federal funds shall be applied toward project costs at the current federal-aid matching ratio, unless otherwise agreed and allowable by law. Agency shall be responsible for the entire match amount, unless otherwise agreed to and specified in the intergovernmental agreement. 23. 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 the State to use in-kind contributions rather than cash to satisfy all or part of the matching funds requirement. B. Agency's construction phase deposit shall be 110 percent of Agency's share of the engineer's estimate and shall be received prior to award of the bid. Any additional balance of the deposit,based on the actual bid must be received within 45 days of receipt of written notification by the State of the final amount due, unless the contract is canceled. Any unnecessary balance of a cash deposit, based on the actual bid, will be refunded within 45 days of receipt by the State of the project sponsor's written request. C. Pursuant to ORS 366.425, the advance deposit may be in the form of 1) money deposited in the State Treasury (an option where a deposit is made in the Local Government Investment Pool, and an Irrevocable Limited Power of Attorney is sent to the Highway Finance Office), or 2) an Irrevocable Letter of Credit issued by a local bank in the name of State, or 3)cash. D. Agency may satisfy all or part of any matching funds requirements by use of in-kind contributions rather than cash when prior written approval has been given by State. 24. If the estimated cost exceeds the total matched-federal funds available, Agency shall deposit its share of the required matching funds, plus 100 percent of all costs in excess of the total matched federal funds. Agency shall also pay 100 percent of the cost of any item in which the FHWA will not participate. If Agency ha`s not repaid any non-participating cost, future allocations of federal funds, or allocations of State Highway Trust Funds, to that Agency may be withheld to pay the non-participating costs. If the State approves processes, procedures, or contract administration outside the Local Agency Guidelines, that result in items being declared non-participating, those items will not result in the withholding of Agency's future allocations of federal funds or the future allocations of State Highway Trust Funds. 25. Costs incurred by the 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. STDPRO-2000.doc g Rev. 8/8/2001 26.If Agency makes a written request for the cancellation of a federal-aid project; Agency shall bear 100 percent of all costs as of the date of cancellation. If the State was the sole cause of the cancellation, the State shall bear 100 percent of all costs incurred. If it is determined that the cancellation was caused by third parties or circumstances beyond the control of State or Agency,Agency shall bear all development costs, whether incurred by the State or Agency, either directly or through contract services, and the 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. 27.The requirements stated in the Single Audit Act must be followed by those local governments receiving $300,000 or more in federal funds. The Single Audit Act of 1984, PL 98-502 as amended by PL 104-156, described in "Office of Management and Budget Circular A-133", requires local governments to obtain an audit that includes internal controls and compliance with federal laws and regulations of all federally-funded programs in which the local agency participates. The cost of this audit can be partially prorated to the federal program. 28. Additional deposits, if any, shall be made as needed upon request from the State. Requests for additional deposits shall be accompanied by an itemized statement of expenditures and an estimated cost to complete the project. 29. Agency shall present invoices for 100 percent of actual costs incurred by Agency on behalf of the project directly to State's Liaison Person for review and approval. Such invoices shall identify the project and agreement number,and shall itemize and explain all expenses for which reimbursement is claimed. Billings shall be presented for periods of not less than one-month duration, based on actual expenses to date. All billings received from Agency must be approved by State's Liaison Person prior to payment. Agency's actual costs eligible for federal-aid or State participation shall be those allowable under the provisions of FAPG,23CFR 1.11, 710,and 140. Final billings shall be submitted to State for processing within three months from the end of each funding phase as follows: 1) award date of a construction contract for preliminary engineering 2) last payment for right-of-way acquisition and 3) third notification for construction. Partial billing (progress payment) shall be submitted to State within three months from date that costs are incurred. Final billings submitted after the three months may not be eligible for reimbursement. 30. The cost records and accounts pertaining to work covered by this agreement are to be kept available for inspection by representatives of State and the FHWA for a period of three (3) years following the date of final voucher to FHWA. Copies of such records and accounts shall be made available upon request. For real property and equipment, the retention period starts from the date of disposition (49 CFR 18.42). 31. State shall request reimbursement, and Agency agrees to reimburse State, for federal-aid funds distributed to Agency if any of the following events occur: a) That right-of-way acquisition or actual construction of the facility for which preliminary engineering is undertaken is not started by the close of the tenth fiscal year following the fiscal year in which the federal-aid funds were authorized; STDPRO-2000.doc 6 Rev. 8/8/2001 b) That right-of-way acquisition is undertaken utilizing federal-aid funds and actual construction is not started by the close of the twentieth fiscal year following the fiscal year in which the federal-aid funds were authorized for right-of-way acquisition. c) That construction proceeds after the project is determined to be ineligible for federal-aid funding (e.g., no environmental approval, lacking permits, or other reasons). 32. Agency shall maintain all project documentation in keeping with State and FHWA standards and specifications. This shall include, but is not limited to, daily work records, quantity documentation, material invoices and quality documentation, certificates of origin, process control records, test results, and inspection records to ensure that projects are completed in conformance with approved plans and specifications. RAILROADS 33.Agency shall follow State established policy and procedures when impacts occur on railroad property.. The policy and procedures are available through the appropriate Region contact or Railroad & Utility Engineer. Only those costs allowable under 23 CFR 646B & 23 CFR 140I, shall be included in the total project costs; all other costs associated with railroad work will be at the sole expense of the Agency, or others. Agency may request State, in writing, to provide railroad coordination and negotiations. However,the State is under no obligation to agree to perform said duties. UTILITIES 34. Agency shall cause to be relocated or reconstructed, all privately or publicly-owned utility conduits, lines, poles, mains, pipes, and all other such facilities of every kind and nature where such relocation or reconstruction is made necessary by the plans of the project in order to conform the utilities and other facilities with the plans and the ultimate requirements of the project. Only those utility relocations, which are eligible for federal aid participation under the FAPG, 23 CFR 645A, shall be included in the total project costs; all other utility relocations shall be at the sole expense of the Agency, or others. State will arrange for utility relocations/adjustments in areas lying within jurisdiction of State, if State is performing the preliminary engineering. Agency may request State in writing to arrange for utility relocations/adjustments lying within Agency jurisdiction, acting on behalf of Agency. This request must be submitted no later than 21 weeks prior to bid let date. However, the State is under no obligation to agree to perform said duties. 35. Agency shall follow established State utility relocation policy and procedures. The policy and procedures are available through the appropriate Region Utility Specialist or ODOT Right of Way Section's Railroad and Utility Coordinator. STDPRO-2000.doc 7 Rev. 8/8/2001 STANDARDS 36. Design standards for all projects on the National Highway System (NHS) and the Oregon State Highway System shall be in compliance to standards specified in the current ODOT Highway Design Manual and related references. Construction plans shall be in conformance with standard practices of State for plans prepared by its own staff. All specifications for the project shall be in substantial compliance with the most current"Oregon Standard Specifications for Highway Construction". 37. Agency agrees that minimum design standards for non-NHS projects shall be recommended AASHTO Standards and in accordance with the current "Oregon Bicycle and Pedestrian Plan", unless otherwise requested by Agency and approved by State. 38. Agency agrees and will verify that the installation of traffic control devices shall meet the warrants prescribed in the"Manual on Uniform Traffic Control Devices and Oregon Supplements". 39. All plans and specifications shall be developed in general conformance with the current "Contract Road Plans Guide" and the current "Standard Specifications"and/or guidelines provided. 40. The standard unit of measurement for all aspects of the project will be System International(SI)Units (metric). This includes, but is not limited to, right-of-way, environmental documents, plans and specifications, and utilities. GRADE CHANGE LIABILITY 41. 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. 42. 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. 43. Agency, if a City, by execution of agreement,gives its consent as required by ORS 373.030(2)to any and all changes of grade within the City limits, and-gives its consent as required by ORS 373.050(1) to any and all closure of streets intersecting the highway, if any there be in connection with or arising out of the project covered by the agreement. CONTRACTOR CLAIMS 44. Agency shall, to the extent permitted by State law, indemnify, hold harmless and provide legal defense for the State against all claims brought by the contractor, or others resulting from Agency's failure to comply with the terms of this agreement. STDPRO-2000.doc 8 Rev. 8/8/2001 MAINTENANCE'RESPONSIBILITIES 45. Agency shall, upon completion of construction; thereafter maintain and operate.the.project at its own cost and expense,,and in a manner satisfactoryto State And the FHWA. .. WORKERS',COMPENSATION:COVERAGE' 46. Agency, its subcontractors, if any, and,all employers working under this agreement are subject employers under the Oregon.Workers= Compensation Law and shall comply with ORS 656.017, which requires them to provide workers' compensation coverage for all their subject workers,unless such employers'are exempt under ORS 656.126. Agency shall ensure that each of its contractors complies with these requirements. LOBBYING RESTRICTIONS 47.Agency certifies by signing the agreement that: A. No Federal appropriated funds have been paid or will be.paid,by or on-behalf of the undersigned, to any person for influencing or attempting to influence an officer or employee of.any..Federal agency, a:Member of Congress, an officer or employee of Congress,.or an employee of a Member of Congress in connection with.the awarding of any Federal contract, the making of any Federal grant; the making of any Federal loan, the entering into of any cooperative agreement, and the extension, continuation, renewal, amendment, or modification of any Federal contract, grant, loan, or cooperative agreement. B. If any funds other than Federal appropriated funds have been paid or will be paid to,any person for influencing or attempting to influence an officer or employee of any Federal agency, a- Member of Congress, an officer or employee of Congress, or an employee of a Member.,of Congress in connection with this Federal contract, grant, loan, or cooperative agreement,.the undersigned shall complete and submit Standard Form-LLL, "Disclosure Form to Report Lobbying," in accordance with its instructions. C. The undersigned shalL-require that the language of this certification be included in the award documents for all subawards at all tiers (including subgrants, and contracts and subcontracts under grants, subgrants, loans, and cooperative agreements) which exceed $100,000, and that all such subrecipients shall certify and disclose accordingly. 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 Section 1352, US.Code. Any person who fails to file the required certification shall be subject to a civil penalty of!not less than $10,000 and not more than$100,000 for each such failure. Paragraphs 34, 35,and 45 are not applicable to any local agency on state highway projects. STDPRO-2000.doc 9 Rev. 8/8/2001