Resolution No. 09-68 CITY OF TIG.ARD, OREGON
TIGARD CITY COUNCIL
RESOLUTION NO. 09-
A RESOLUTION OF`THE CITY COUNCIL APPROVING AN AGREEMENT WITH THE
OREGON DEPARTMENT OF TRANSPORTATION (ODOT) FOR RIGHT-OF-WAY
SERVICES ON. THE GREENBURG ROAD/HIGHWAY 99W/MAIN STREET
INTERSECTION IMPROVEMENT PROJECT.
WHEREAS, the Greenburg Road/I-Iighway 99W/M,.un Street Intersection Project will provide
additional capacity and is expected to alleviate traffic congestion along Highway 99W and on
intersecting City streets; and
WHEREAS, the City Nv ll be acquiring right-of-way to'accommodate the intersection improvements
and will be transferring portions of that right-of-way along Highway 99W to ODOT for integration
into the state highway system,and
WHEREAS, the City needs to enter into an agreement with ODOT to delineate the obligations for
each of the parties regarding the property acquisition and eventual transfer of right-of-way to
ODOT; and
WHEREAS,The agreement attached as Exhibit A to this Resolution delineates that the City will pay
up to $10,000 for ODOT's staff time to review the documents accomplishing this acquisition and.
transfer: This money is budgeted as part of the cost of acquiring right-of-way for this project.
NOW,THEREFORE,BE IT RESOLVED by the Tigard City Council that:
SECTION 1: The agreement attached as Exhibit A to this Resolution is hereby approved, and the
City Manager is authorized to sign the agreement documents.
SECTION 2. This resolution is effective immediately upon passage.
PASSED:This day of i '2009.
Mayor- 'ity of Tigard
ATTES'
City Recorder-City o f Tigard
RESOLUTION NO. 09-
Page 1
EXHIBIT A
Misc. Contracts & Agreements
No.26200
INTERGOVERNMENTALAGREEMENT
FOR RIGHT OF WAY SERVICES
Pacific Highway West and SW Greenburg Road/SW Main Street
THIS AGREEMENT is made and entered into by and between the STATE OF
OREGON, acting by and through its Department of Transportation, hereinafter referred
to as "State"; and the CITY OF TIGARD, acting by and through its elected officials,
hereinafter referred to as "Agency," hereinafter individually referred to as the "Party"
and collectively referred to as the "Parties."
RECITALS
1. By the authority granted in 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. When
said money or a letter of credit is deposited, State shall proceed with the Project.
Money so deposited shall be disbursed for the purpose for which it was deposited.
3. That certain SW Greenburg Road, which becomes SW Main Street after crossing
Pacific Highway West (99W) is a part of the City Street System under the jurisdiction
and control of Agency and Agency may enter into an agreement for the acquisition of
real property.
4, Pacific Highway West (99W), is a part of the state highway system under the
jurisdiction and control of the Oregon Transportation Commission (OTC).
5. This Agreement shall define roles and responsibilities of the Parties regarding the real
property to be used as part of right of way for road, street or construction of public
improvement. The scope and funding may be further described in Cooperative
Improvement Agreement number 26,189. Hereinafter, all acts necessary to
accomplish services in this Agreement shall be referred to as "Project."
NOW THEREFORE, the premises being in general as stated in the foregoing recitals, it is
agreed by and between the Parties hereto as follows:
RNV Services IGA(Revised July 2009)
TERMS OF AGREEMENT
1. Under such authority, Sete and Agency agree to perform certain right of way activities
shown in Special Provisions - Exhibit A, attached hereto and by this reference made a
part hereof. if the State performs right of way services on behalf of the Agency, under
no conditions shall Agency's obligations for said services exceed a maximum of
$10,000, including all expenses, unless agreed upon by both Parties.
2. The work shall begin on the date all required signatures are obtained and shall be
completed no later than ten (10) calendar years, on whichdate this Agreement
automatically terminates unless extended by a fully executed amendment.
3. The process to be followed by the Parties in carrying out this Agreement is set out in
Exhibit A.
4. It is further agreed both Parties will strictly follow the rules, policies and procedures o
the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970,
as amended, ORS Chapter 36 and the "State Right of Way Manual".
STATE OBLIGATIONS
1: State shall perform the work described in Special Provisions - Exhibit A.
2. With the exception of work related to appraisals, State shall not enter into any
subcontracts for any of the work scheduled under this Agreement without obtaining
prior written approval from Agency.
3. If the State performs right of way services on behalf of the Agency, State shall perform
the service under this Agreement as an independent contractor and shall be
exclusively responsible for all costs and expenses related to its employment of
individuals to perform the work under this Agreement including, but not limited to,
retirement contributions, workers compensation, unemployment taxes, and state and
federal income tax withholdings.
4. State's right of way contact person for this Project is Matthew Gossett, Region 1 Right
of Way Project Manager, 123 NW Flanders Street, Portland, OR 97209, 503-731-
8425, matthew.c.gossett a@odot.state.or.us, or assigned designee upon individual's
absence.
AGENCY OBLIGATIONS
1. Agency shall perform the work described in Special Provisions - Exhibit A.
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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 all, or its pro-rata share of all, costs and expenses incurred in the
Project up to its maximum.
3. Agency may utilize its own staff or subcontract any of the work scheduled under this
Agreement provided Agency receives prior written approval of any staff, consultant or
contractor by the State's Region Right of Way office.
4. Agency represents that this Agreement is signed by personnel authorized to do so on
behalf of Agency.
5. Agency's right of way contact person for this Project is the Tigard City Engineer,
13125 SW Hall Blvd, Tigard, OR 97223, or assigned designee upon individual's
absence.
PAYMENT FOR SERVICES AND EXPENDITURES:
1. In consideration for the services performed by State (as identified in the attached
Exhibit A), Agency agrees to pay or reimburse State a maximum amount of$10,000.
Said maximum amount shall include reimbursement for all expenses, including
travel expenses. Travel expenses shall be reimbursed to State in accordance with
the current Oregon Department of Administrative Services' rates. Any expenditure
beyond federal participation will be from, or reimbursed from, Agency funds.
Payment in Agency and/or federal funds in any combination shall not exceed said
maximum, unless agreed upon by both Parties.
2. Agency agrees to reimburse salaries and payroll reserves of State employees working
on Project, direct costs, costs of rental equipment used, and per-diem expenditures.
GENERAL PROVISIONS:
1. 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:
a. If either Party fails to provide services called for by this Agreement within the
time specified herein or any extension thereof.
b. If either Party 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 fails to correct such
failures within ten (1 g) days or such longer period as may be authorized.
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c. If Agency fails to provide payment of its share of the cost of the Project.
d. If State fails to receive funding, appropriations, limitations or other expenditure
authority sufficient to allow State, in the exercise of its reasonable administrative
discretion, to continue to make payments for performance of this Agreement,
e. If federal or state laws, regulations or guidelines are modified or interpreted in
such a way that either the work under this Agreement is prohibited or State is
prohibited from paying for such work from the planned funding source.
2. Any termination of this Agreement shall not prejudice any rights or obligations
accrued to the Parties prior to termination.
3. 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.
4. Agency shall comply with all federal, state, and local laws, regulations, executive
orders and ordinances applicable to the work under this Agreement, including,
without limitation, the provisions of ORS 279B.220, 2798.225, 279B.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.
5. All employers, that employ subject workers who work under this Agreement in the
State of Oregon shall comply with ORS 656.017 and provide the required workers'
compensation coverage unless such employers are exempt under ORS 656.126,
Both Parties shall ensure that each of its subcontractors complies with these
requirements.
6. Both Parties shall, to the extent permitted by the Oregon Constitution and the
Oregon Tort Claims Act, indemnify, defend, save, and hold harmless each other,
their officers and employees from any and all claims, suits, or actions of any nature
arising out of activities of the indemnifying Party, its officers, employees or agents in
their respective performance under this Agreement.
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7. Notwithstanding the foregoing defense obligations under the paragraph above,
neither Party nor any attorney engaged by either Party shall defend any claim in the
name of the other Party or any agency/department/division of such other Party, nor
purport to act as legal representative of the other Party or any of its
agencies/departments/divisions, without the prior written consent of the legal
counsel of such other Party, Each Party may, at anytime at its election assume its
own defense and settlement in the event that it determines that the other Party is
prohibited from defending it, or that other Party is not adequately defending it's
interests, or that an important governmental principle is at issue or that it is in the
best interests of the Party to do so. Each Party reserves all rights to pursue any
claims it may have against the other if it elects to assume its own defense,
8. If federal funds are involved in this Agreement, Exhibits B and C are attached hereto
and by this reference made a part of this Agreement, and are hereby certified to by
Agency.
9. If federal funds are involved in this Agreement, 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.
10.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.
11.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.
12.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
26200 - 5 -
Party unless in writing and signed by both Parties and all necessary approvals have
been obtained. Such waiver, consent, modification or change, if made, shall be
effective only in the specific instance and for the specific purpose given. The failure
of State to enforce any provision of this Agreement`shall not constitute a waiver by
State of that or any other provision.
THE PARTIES, by execution of this Agreement, hereby acknowledge that each Party
has read this Agreement, understands it, and agrees to be bound by its terms and
conditions.
The Oregon Transportation Commission on May 20, 2009, approved Delegation Order
No. 3, which authorizes the Director and Deputy Director, Highways to approve and
execute all agreements pertaining to real property transactions.
On July 7, 2005, the Director and Deputy Director, Highways approved Subdelegation
Order No. 4, in which the Director and Deputy Director, Highways delegates authority to
the Technical Services Manager/Chief Engineer to approve and execute all agreements
pertaining to real property transactions.
Signature Page to Follow
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Pursuant to a Letter of Authority dated August 8, 2005, the Technical Services
Manager/Chief Engineer authorized the State Right of Way Manager to approve and sign
all Department real property deeds, contracts, agreements, and ether documents
pertaining to real property transactions and to approve and execute agreements with
other governmental jurisdictions to employ Dight of Way Section staff.
CITY OF TIGARD, by and through STATE OF OREGON, by and through
its City Council its Department of Transportation
By By
City Manager State Right of Way Manager
9
Date Date
By APPROVAL RECOMMENDED
By
Date Region 1 Right of Way Manager
APPROVED AS TO LEGAL Date
SUFFICIENCY
By
By n1a
City Attorney
Date
Date
Agency Contact: APPROVED AS TO LEGAL SUFFICIENCY
Tigard City Engineer By nla
13125 SW Hall Blvd Assistant Attorney General
Tigard, OR 97223
503-839-4171 Date:
State Contact;
Sam Hunaidi
123 NW Flanders Street
Portland, OR 87299
503-731-8472
sam.h,hunadi@odot,state.or.u
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SPECIAL PROVISIONS EXHIBIT A
Right of Way Services
THINGS TO BE DONE BY STATE OR AGENCY
1 Pursuant to this Agreement, the work performed on behalf of the Agency can be
performed by the< Agency, the Agency's consultant, or a State Flex Services
consultant. The work may be performed by Agency staff or any of these
representatives on behalf of Agency individually or collectively provided they are
qualified to perform such functions and after receipt of approval from the State's
Region 1 Right of Way Manager. Said approval must be obtained, in writing, prior to
the performance of said activities,
2, With the exception of work related to appraisals, State shall not enter into any
subcontracts for any of the work scheduled under this Agreement without obtaining
prior written approval from Agency.
3. 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, ORS Chapter 35 and the "State Right of Way Manual".
Instructions: Insert either: State, Agency, or N/A on each line.
A. Preliminary Phase
1. Agency shall provide preliminary cost estimates.
2. Agency shall make preliminary contacts with property owners.
3. Agency shall gather and provide data for environmental documents.
4. State and Agency shall develop access and approach road list.
5. Agency shall help provide field location and Project data.
B. Acquisition Phase
1. General:
a. When doing the Acquisition work, Agency shall provide State with a status
report of the Project quarterly.
b. Title to properties acquired shall be in the name of the Agency.
26200
c. Prier to the initiation of acquisitions, if title to the properties is to be acquired in
the name of the Agency, the Agency shall adopt a resolution of intention and
determination of necessity in accord with QRS 35.610, authorizing acquisition
and condemnation. if the Oregon Department of Justice is to handle
condemnation work, that information needs to be included in the resolution
adopted by the Agency. Prior approval by Oregon Department of Justice is
required.
2. Legal Descriptions:
a. Agency shall provide sufficient horizontal control, recovery and retracement
' surveys, vesting deeds, maps and other data so that legal descriptions can be
written.
b. Agency shall provide construction plans and cross-section information for the
Project.
c. Agency 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 "State Right of Way & Rail/Utility
Coordination Manual "Contractor Services Guide" and the "Right of Way
Engineering Manual". The preliminary and final versions of the property
descriptions and right of way maps must be reviewed and approved by the
State.
d Agency shall specify the degree of title to be acquired (e.g., fee, easement).
. Real Property and Title Insurance:
a. Agency shall provide preliminary title reports, if State determines they are
needed, before negotiations for acquisition commence.
b. 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 "State Right of Way
Manual" and the "Contractor Services Guide". Agency shall clear any
encumbrances necessary to conform to these requirements, obtain Title
insurance policies as required and provide the State copies of any title policies
for the properties acquired.
c. Agency shall conduct a Level' 1 Hazardous Materials Study within project
limits to detect presence of hazardous materials on any property purchase,
26200 1 - g
excavation or disturbance of structures, as early in the project design as
possible, but at a minimum prior to property acquisition or approved design.
d. Agency' shall conduct a Level 2 Site Investigation of sufficient scope to
confirm the presence of contamination, determine impacts to properties and
develop special provisions and cost estimates, if the Level 1 Corridor study
indicates the potential presence of contamination that could impact the
properties.
• If contamination is found, a recommendation for remediation will be
presented to State.
e. Agency shall be responsible for arrangement of any necessary remediation.
f. Agency 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.
4. Appraisal:
a. Agency shall conduct the valuation process of properties to be acquired.
b. Agency shall perform the Appraisal Reviews.
c. Agency shall recommend Just Compensation, based upon a review of the
valuation by qualified personnel.
5. Negotiations:
a. Agency shall tender all monetary offers to land-owners in writing at the
compensation shown in the appraisal review. Conveyances taken for more or
less than the approved Just Compensation will require a statement justifying
the settlement. Said statement will include the consideration of any property
trades, construction obligations and zoning or permit concessions. If State
performs this function, it will provide the Agency 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 shall occur prior to advertising of any
construction contract, unless appropriate exceptions have been agreed to by
Agency and State.
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c. Agency agrees to file all Recommendations for Condemnation at least seventy
(70) days prior to the right of way certification date if negotiations have not
been successful on these properties.
6. Relocation:
a. Agency shall perform any relocation assistance, snake replacement housing
computations, and do all things necessary to relocate any displaced Parties on
the Project.
b. Agency shall make all relocation and moving payments for the Project.
9
c. Agency shall perform 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, If Agency is handling the closing, State shall submit all
signed Final Report packets, information required by the Uniform Act, and
agreements to the Agency.
2. Agency shall record conveyance documents, only upon acceptance by appropriate
agency.
D. Property Management
1. Agency shall take possession of all the acquired properties. There shall be no
encroachments of buildings or ether private improvements allowed upon the State
highway right of way.
2. Agency shall dispose of all improvements and excess land,
E. Condemnation
1. N/A may offer mediation if the Parties 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 work related to the condemnation process; (If State
is doing this for another agency, the Oregon Department of Justice must approve
in advance).
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4. Agency shall perform all litigation work related to condemnation. (1f State is doing
this for another agency, the Oregon Department of Justice must approve in
advance):
F. Transfer of might of Way to State
If applicable, Agency agrees to transfer to the State all right of way acquired on the
State highway which was acquired in the Agency's name. 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 bight of Way Manager. Agency agrees to
provide the Mate all information and file documentation the Mate 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 owners).
26200 - 12 -
For purposes of Exhibits B and C, references to Department shall mean Mate, references to Contractor
shall mean Agency, and references to Contract shall mean Agreement:
EXHIBIT B (Local Agency or State Agency)
CONTRACTOR CERTIFICATION
Contractor certifies by signing this Contract that Contractor has not:
(a) Employed or retained for a commission, percentage, brokerage, contingency fee or other
consideration, any firm or person (other than a bona fide employee working solely for me or the
above Contractor) to solicit or secure this Contract,
(b) agreed, as an express'or implied condition for obtaining this Contract, to employ or retain the
services of any firm or person in connection with carrying out the Contract,or
(c) paid or agreed to pay, to any firm, organization or person (other than a bona fide employee
working solely for me or the above Contractor), any fee, contribution, donation or consideration
of any kind for or in connection with, procuring or carrying out the Contract, except as here
expressly stated (if any):
Contractor further acknowledges that this certificate is to be furnished to the Federal Highway
Administration, and is subject to applicable State and Federal laws, both criminal and civil.
DEPARTMENT OFFICIAL CERTIFICATION
Department official likewise certifies by signing this Contract that Contractor or his/her representative has
not been required directly or indirectly as an expression of implied condition in connection with obtaining or
carrying out this Contract to:
(a) Employ, retain or agree to employ or retain, any firm or person or
(b) pay or agree to pay, to any firm, person or organization, any fee, contribution, donation or
consideration of any kind except as here expressly stated (if any):
Department official further acknowledges this certificate is to be furnished to the Federal Highway
Administration, and is subject to applicable State and Federal laws, both criminal and civil.
Exhibit C'
Federal Provisions
Oregon Department of Transportation
CERTIFICATION OF NONINVOLVEMENT IN ANY DEBARMENT AND SUSPENSION
Contractor certifies by signing this Contract that to the best of its knowledge and belief, it and its
principals:
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1. Are not presently debarred, suspended,
proposed for debarment, declared ineligible or 2. The inability to provide the certification
voluntarily excluded from covered required below will not necessarily result in
transactions by any Federal department or denial of participation in this covered
agency; transaction. The Contractor shall explain
why he or she cannot provide the
2. Have not within a three-year period preceding certification set out below. This explanation
this Contract been convicted of or had a civil will be considered in connection with the
judgment rendered against them for Department determination to enter into this
commission of fraud or a criminal offense in transaction. Failure to furnish an explanation
connection with obtaining, attempting to shall disqualify such person from
obtain or performing a public(federal„ state or participation in this transaction.
local) transaction or contract under a public 3. The certification in this clause is a material
transaction, violation of federal or state representation of fact upon which reliance
antitrust statutes or commission of was placed when the department
embezzlement, theft, forgery, bribery determined to enter into this transaction. If it
falsification or destruction of records, making is later determined that the Contractor
false statements or receiving stolen property; knowingly rendered an erroneous
certification, in addition to other remedies
3. Are not presently indicted for or otherwise available to the Federal Government or the
criminally or civilly charged by a Department may terminate this transaction
governmental entity (federal, state or local) for cause of default.
with commission of any of the offenses
enumerated in paragraph (1)(b') of this 4, The Contractor shall provide immediate
certification; and written notice to the Department if at any
time the Contractor learns that its
4. Have not within a three-year period preceding certification was erroneous when submitted
this Contract had one or more public or has become erroneous by reason of
transactions (federal, state or local) changed circumstances.
terminated for cause or default.
5. The terms"covered transaction" "debarred",
Where the Contractor is unable to certify to any of "suspended", "ineligible" ",lower tier covered
the statements in this certification, such prospective transaction", "participant"; "person", "primary
participant shall submit a written explanation to covered transaction", "principal", and
Department; "voluntarily excluded", as used in this;clause,
have the meanings set out in the Definitions
List exceptions. For each exception noted, indicate and Coverage sections of the rules
to whom the exception applies, initiating agency, and implementing Executive Order 12545. You
dates of action. If additional space is required, attach may contact the Department's Program
another page with the following heading: Certification Section (Tel. (503) 986-3400) to which this
Exceptions continued, Contract Insert. proposal is being submitted for assistance in
obtaining a copy of those regulations.
EXCEPTIONS:
. The Contractor agrees by entering into this
Exceptions will not necessarily result in denial of Contract that, should the proposed covered
award, but will be considered in determining transaction be entered into, it shall not
Contractor responsibility. Providing`false information knowingly enter into any lower tier covered
may result in criminal prosecution or administrative transactions with a person who is debarred,
sanctions. suspended, declared ineligible or voluntarily
excluded from participation in this covered
The Contractor is advised that by signing this transaction, unless authorized by the
Contract, the Contractor is deemed to have signed Department or agency entering into this
this certification. transaction.
Il. INSTRUCTIONS FOR CERTIFICATiON
REGARDING DEBARMENT, SUSPENSION, T The Contractor further agrees by entering
AND OTHER RESPONSIBILITY MATTERS- into this Contract that it will include the
PRIMARY COVERED TRANSACTIONS Addendum to Form FHWA-1273 titled,
"Appendix B—Certification Regarding
1. By signing this Contract, the Contractor is Debarment, Suspension, Ineligibility and
providing the certification set out below. Voluntary Exclusion--Lower Tier Covered
Transactions", provided by the Department 2. The certification in this clause is a material
entering into this covered transaction without representation of fact upon which reliance
modification, in all lower tier covered was placed when this transaction was
transactions and in all solicitations for lower entered into. If it is later determined that the
tier covered transactions. prospective lower tier participant knowingly
rendered an erroneous certification, in
8. A participant in a covered transaction may addition to other remedies available to the
rely upon a certification of a prospective Federal Government, the department or
participant in a lower tier covered transaction agency with which this transaction originated
that it is not debqrred, suspended, ineligible may pursue available remedies, including
or voluntarily excluded from the covered suspension and/or debarment.
transaction, unless it knows that the
certification is erroneous. A participant may 3. The prospective lower tier participant shall
decide the method and frequency by which it provide immediate written notice to the
determines the eligibility of its principals. person to which this Contract is submitted if
Each participant may, but is not required to, at any time the prospective lower tier
check the Nonprocurement List published by participant learns that its certification was
the U. S. General Services Administration. erroneous when submitted or has become
erroneous by reason of changed
9. Nothing contained in the foregoing shall be circumstances.
construed to require establishment of a
system of records to render in good faith the 4. The terms"covered transaction", "debarred",
certification required by this clause. The "suspended", "ineligible", "lower tier covered
knowledge and information of a participant is transaction", "participant", "person", "primary
not required to exceed that which is normally covered transaction", "principal", "proposal",
possessed by a prudent person in the and "voluntarily excluded", as used in this
ordinary course of business dealings. clause, have the meanings set out in the
Definitions and Coverage sections of rules
10. Except for transactions authorized under implementing Executive Order 12549. You
paragraph 6 of these instructions, if a may contact the person to which this
participant in a covered transaction Contract is submitted for assistance in
knowingly enters into a lower tier covered obtaining a copy of those regulations.
transaction with a person who is suspended,
debarred, ineligible or voluntarily excluded 5. The prospective lower tier participant agrees
from participation in this transaction, in by submitting this Contract that, should the
addition to other remedies available to the proposed covered transaction be entered
Federal Government or the Department, the into, it shall not knowingly enter into any
Department may terminate this transaction lower tier covered transaction with a person
for cause or default. who is debarred, suspended, declared
ineligible or voluntarily excluded from
111. ADDENDUM TO FORM FHWA-1273, participation in this covered transaction,
REQUIRED CONTRACT PROVISIONS unless authorized by the department or
agency with which this transaction
This certification applies to subcontractors, material originated.
suppliers, vendors, and other lower tier participants.
6. The prospective lower tier participant further
Appendix B of 49 CFR Part 29- agrees by submitting this Contract that it will
include this clause titled, "Certification
Appendix B--Certification Regarding Debarment, Regarding Debarment, Suspension,
Suspension, Ineligibility, and Voluntary Ineligibility and Voluntary Exclusion--Lower
Exclusion--Lower Tier Covered Transactions Tier Covered Transaction", without
modification, in all lower tier covered
Instructions for Certification transactions and in all solicitations for lower
tier covered transactions,
1: By signing and submitting this Contract, the
prospective lower tier participant is providing T A participant in a covered transaction may
the certification set out below♦ rely upon a certification of a prospective
participant in a lower tier covered transaction
that it is not debarred, suspended, ineligible
or voluntarily excluded from the covered
transaction, unless it knows that the percentage, brokerage fee, gifts or any ether
certification is erroneous. A participant may consideration contingent upon or resulting
decide the method and frequency by which it from the award or making of this Contract.
determines the eligibility of its principals. For breach or violation of this warranting,
Each participant may, but is not required to, Department shall have the right to annul this
check the nonprocurement last. Contract without liability or in its discretion to
deduct from the Contract price or
8. Nothing contained in the foregoing shall be consideration or otherwise recover, the full
construed to require establishment of a amount of such fee; commission,
system of records to render in good faith the percentage, brokerage fee, gift or contingent
certification required by this clause. The fee.
knowledge and information of a participant is
not required to exceed that which is normally 2. Contractor shall not engage, on a full or
possessed by a prudent person in the part-time basis or other basis, during the
ordinary course of business dealings. period of the Contract; any professional or
technical personnel who are or have been at
9. Except for transactions authorized under any time during the period of this Contract,In
paragraph 6 of these instructions, if a the employ of Department, except regularly
participant in a covered transaction retired employees, without written consent of
knowingly enters into a lower tier covered the public employer of such person.
transaction with a person who is suspended,
debarred, ineligible or voluntarily excluded 3. Contractor agrees to perform consulting
from participation in this transaction, in services with that standard of care, skill and
addition to other remedies available to the diligence normally provided by a professional
Federal Government, the department or in the performance of such consulting
agency with which this transaction originated services on work similar to that hereunder.
may pursue available remedies, including Department shall be entitled to rely on the
suspension and/or debarment. accuracy, competence, and completeness of
Contractor's services.
Certification Regarding Debarment,
Suspension, ineligibility, and Voluntary V, NONDiSCRIMINATiON
Exclusion--Lower Tier Covered
Transactions During the performance of this Contract,
Contractor, for himself, his assignees and
a. The prospective lower tier participant successors in interest, hereinafter referred to as
certifies, by entering into this Contract, Contractor, agrees as follows:
that neither it nor its principals is
presently debarred, suspended, 1, Compliance with Regulations. Contractor
proposed for debarment, declared agrees to comply with Title VI of the Civil
ineligible or voluntarily excluded from Rights Act of 1964, and Section 162(x) of
participation in this transaction by any the Federal-Aid Highway Act of 1973 and the
Federal department or agency. Civil Rights Restoration Act of 1987.
Contractor shall comply with the regulations
b. Where the prospective lower tier of the Department of Transportation relative
participant is unable to certify to any of to nondiscrimination in Federally assisted'
the statements in this certification, such programs of the Department of
prospective participant shall submit a Transportation, Title 49, Code of Federal
written explanation to Department. Regulations, Part 21, as they may be
amended from time to time (hereinafter
IV. EMPLOYMENT referred to as the Regulations), which are
incorporated by reference and made a part
1. Contractor warrants that he has not of this Contract. Contractor, with regard to
employed or retained any company or the work performed after award and prior to
person, other than a bona fide employee completion of the Contract work, shall not
working solely for Contractor, to solicit or discriminate on grounds of race, creed,
secure this Contract and that he has not paid color, sex or national origin in the selection
or agreed to pay any company or person, and retention of subcontractors, including
other than a bona fide employee working procurement of materials and leases of
solely for Contractors, any fee,}commission, equipment. Contractor shall not participate
either directly or indirectly in the access to his books, records, accounts,
discrimination prohibited by Section 21.5 of other sources of information, and his
the Regulations; including employment facilities as may be determined by
practices, when the Contract covers a Department or FHWA as appropriate, and
program set forth in Appendix B of the shall set forth what efforts he has made to
Regulations. obtain the information.
2. Solicitation for Subcontractors, including 5. Sanctions for Noncompliance. In the event of
Procurement of Materials and Equipment;. in Contractor's noncompliance with the
all solicitations; either by competitive bidding nondiscrimination provisions of the Contract,
or negotiations made by Contractor for work Department shall impose such agreement
to be performed under a subcontract, sanctions as it or the FNWA may determine
including procurement of materials and to be appropriate, including, but not limited
equipment, each potential subcontractor or to:
supplier shall be notified by Contractor of
Contractor's obligations under this Contract a. Withholding of payments to Contractor
and regulations relative to nondiscrimination under the agreement until Contractor
on the grounds of race, creed, color, sen or complies;and/or
national origin.
b. Cancellation, termination or suspension
3. Nondiscrimination in Employment (Title VII of the agreement in whole or in part.
of the 1964 Civil Rights Act): During the
performance of this Contract, Contractor 6. Incorporation of Provisions. Contractor will
agrees as follows: include the previsions of paragraphs 1
through 6 of this section in every
a. Contractor will not discriminate against subcontract, including procurement of
any employee or applicant for materials and leases of equipment, unless
employment because of race, creed, exempt from Regulations; orders or
color, sex or national origin. Contractor instructions issued pursuant thereto.
will take affirmative action to ensure that Contractor shall take such action with
applicants are employed, and that respect to any subcontractor or procurement
employees are treated during as Department or FhlWA may direct as a
employment, without regard to their means of enforcing such provisions,
race, creed, color, sex or national origin; including sanctions for noncompliance,
Such action shall include, but not be provided, however; that in the event
limited to the following; employment; Contractor becomes involved in or is
upgrading, demotion or transfer; threatened with litigation with a
recruitment or recruitment advertising; subcontractor or supplier as a result of such
layoff or termination; rates of pay or direction, Department may; at its option,
other forms of compensation; and enter into such litigation to protect the
selection for training, including interests of Department, and, in addition;
apprenticeship. Contractor agrees to Contractor may request Department to enter
post in conspicuous places, available to into such litigation to protect the interests of
employees and applicants for the State of Oregon'.
employment, notice setting forth the
provisions of this nondiscrimination VI. DISADVANTAGED BUSINESS
clause. ENTERPRISE (DBE) POLICY
b. Contractor will, in all solicitations or In accordance with Title 49, Cade of Federal
advertisements for employees placed by Regulations, Part 26, Contractor shall agree to
or can behalf of Contractor, state that all abide by and take all necessary and reasonable
qualified applicants will receive steps to comply with the following statement:
consideration for employment without
regard to race, creed, color; sex or DBE POLICY STATEMENT
national origin.
DBE Policy. It is the policy of the United States
4. Information and Reports. Contractor will Department of Transportation (USDOT) to
provide all information and reports required practice nondiscrimination on the basis of race,
by the Regulations or orders and instructions color, sex and/or national origin in the award
issued pursuant thereto, and` will permit
and administration of USIDOT assist contracts. Any DBE participation attained after the DBE
Consequently, the DBE requirements of 49 goal has been satisfied should be reported to
CFR 26 apply to this Contract. the Departments.
Required Statement For LISDOT Financial DBE Definition. Only firms DBE
Assistance Agreement. If as a condition of certified by the State of Oregon, Department of
assistance the Agency has submitted and the Consumer & Business Services, Office of
US Department of Transportation has approved Minority, Women & Emerging Small Business,
a Disadvantaged Business Enterprise may be utilized to satisfy this obligation.
Affirmative Action Program which the Agency
agrees to carry out, this affirmative action CONTRACTOR'S DBE CONTRACT GOAL
program is incorporated into the financial
assistance agreement by reference. DBE GOAL 0 %
DBE Obligations. The Department and its By signing this Contract, Contractor assures
Contractor agree to ensure that Disadvantaged that good faith efforts have been made to meet
Business Enterprises as defined in 49 CFR 26 the goal for the DBE participation specified in
have the opportunity to participate in the the Contract for this project as required by ORS
performance of contracts and subcontracts 200.045, and 49 CFR 26.53 and 49 CFR, Part
financed in whole or in part with Federal funds, 26, Appendix A,
In this regard, Contractor shall take all
necessary and reasonable steps in accordance VII. LOBBYING
with 49 CFR 26 to ensure that Disadvantaged
Business Enterprises have the opportunity to The Contractor certifies, by signing this
compete for and perform contracts. Neither agreement to the best of his or her knowledge
Department nor its contractors shall and belief, that:
discriminate on the basis of race, color, national
origin or sex in the award and performance of 1. No Federal appropriated funds have been
federally-assisted contracts. The Contractor paid or will be paid, by or on behalf of the
shall carry out applicable requirements of 49 undersigned, to any person for influencing or
CFR Part 26 in the award and administration of attempting to influence an officer or
such contracts. Failure by the Contractor to employee of any Federal agency, a Member
carry out these requirements is a material of Congress, an officer or employee of
breach of this Contract, which may result in the Congress or an employee of a Member of
termination of this Contract or such other Congress in connection with the awarding of
remedy as Department deems appropriate. any Federal contract, the making of any
Federal grant, the making of any Federal
The DBE Policy Statement and Obligations loan, the entering into of any cooperative
shall be included in all subcontracts entered into agreement, and the extension, continuation,
under this Contract. renewal, amendment or modification of any
Federal contract, grant, loan or cooperative
Records and Reports. Contractor shall provide agreement.
monthly documentation to Department that it is
subcontracting with or purchasing materials 2. If any funds other than Federal appropriated
from the DBEs identified to meet Contract funds have been paid or will be paid to any
goals. Contractor shall no* Department and person for influencing or attempting to
obtain its written approval before replacing a influence an officer or employee of any
DBE or making any change in the DBE Federal agency, a Member of Congress, an
participation listed, If a DBE is unable to fulfill officer or employee of Congress or an
the original obligation to the Contract, employee of a Member of Congress in
Contractor must demonstrate to Department the connection with this agreement, the
Affirmative Action steps taken to replace the undersigned shall complete and submit
DBE with another DBE. Failure to do so will Standard Form-LILL, "Disclosure Form to
result in withholding payment on those items. Report Lobbying", in accordance with its
The monthly documentation will not be required instructions.
after the DBE goal commitment is satisfactory
to Department. 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, Title 31, U. S. 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.
The Contractor also agrees by signing this
agreement that he or she shall require that the
language of this certification be included in all
lower tier subagreements, which exceed
$100,000 and that all such subrecipients shall
certify and disclose accordingly;
FOR INQUIRY CONCERNING
DEPARTMENT'S DBE PROGRAM
REQUIREMENT CONTACT OFFICE OF
CIVIL RIGHTS AT(503)986-4354: