ODOT - Main Street Right of Way Services from 99W to Rail Corridor Misc. Contracts and Agreements
No.26897
INTERGOVERNMENTAL AGREEMENT
FOR RIGHT OF WAY SERVICES
SW Main Street: 99W to Rail Corridor
THIS AGREEMENT is made and entered into by and between the STATE OF
OREGON, acting by and through its Department of Transportation, hereinafter referred
to as "State"; and the CITY OF TIGARD, acting by and through its elected officials,
hereinafter referred to as "Agency," both herein referred to individually or collectively as
"Party" or "Parties."
RECITALS
1. By the authority granted in Oregon Revised Statute (ORS) 190.110, 283.110,
366.572 and 366.576, state agencies may enter into agreements with units of local
government or other state agencies for the performance of any or all functions and
activities that a Party to the agreement, its officers, or agents have the authority to
perform.
2. By the authority granted in ORS 366.425, State may accept deposits of money or an
irrevocable letter of credit from any county, city, road district, person, firm, or
corporation for the performance of work on any public highway within the State. 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 Main Street is a city street under the jurisdiction and control of Agency
and Agency may enter into an agreement for the acquisition of real property.
4. n/a, 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 Local Agency
Agreement number 25365. 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:
R/W Services IGA(Revised April 2010) _ 1 _
TERMS OF AGREEMENT
1. Under such authority, State 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 which date 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 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".
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 Matt Gossett, Right-of-Way Agent,
123 NW Flanders St, Portland, OR 97209-4012 503-731-8425,
matthew.c.gossett@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.
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
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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 Kim McMillan, Project Manager,
City of Tigard, 13125 SW Hall Blvd., Tigard, OR 97223, 503-718-2642, kim@tigard-
or.gov, 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 (10) days or such longer period as may be authorized.
c. If Agency fails to provide payment of its share of the cost of the Project.
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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, 279B.225, 279B.230, 279B.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 may occur in
their respective performance of this Project. Agency's total liability shall not exceed
the tort claims limits provided in Oregon Tort Claims Act, ORS 30.260 to 30.300, for
'local public bodies'.
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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
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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 acknowledges that its signing
representatives have read this Agreement, understand it, and agree 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 3, 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 other documents
pertaining to real property transactions and to approve and execute agreements with
other governmental jurisdictions to employ Right of Way Section staff.
CITY OF TIGARD, by and through STATE OF OREGON, by and through
its elected,officials �r its Department of Transportation
By / By_ �5-Q
Ma or / �o+ State Right of Way Manager
Date -`7(-14 u o.r c a� ;�/ Date 2 1 ZS t
By APPROVAL RECOMMENDED
Recorder n ou
By .�u--Q-c.�.e � K
Date-Ie brc tGr. A a0 1 ! Region 1 Right of Way Manager
u I
APP OVED AS TOILE SUFFICIENCY Date Z S i !
By
it Attorney
Date Date
Agency Contact: APPROVED AS TO LEGAL SUFFICIENCY
Kim McMillan
13125 SW Hall Blvd By n/a
Tigard, OR 97223 Assistant Attorney General
503-718-2643
kim@tigard-or.gov Date
State Contact: APPROVED
Michele Thom (If Litigation Work Related to Condemnation is
123 NW Flanders to be done by State)
Portland, OR 97209
503-731-8279 By n/a
Michele.R.Thom@odot.state.or.us Chief Trial Counsel
Date
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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. 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.
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c. Prior 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 ORS 35.235 and ORS 35.610,
authorizing acquisition and condemnation. If the Oregon Department of Justice
is to handle condemnation work, prior approval evidenced by Chief Trial
Counsel, Department of Justice, signature on this Agreement is required; and
authorization for such representation shall 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).
3. 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,
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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 those properties.
6. Relocation:
a. Agency shall perform any relocation assistance, make 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.
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 other 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 and litigation work related to the condemnation
process. (If State agrees to handle legal and litigation work, prior approval
evidenced by Chief Trial Counsel, Department of Justice, signature on this
Agreement is required. Where it is contemplated that property will be obtained for
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Agency for the Project, such approval will be conditioned on passage of a resolution
by Agency substantially in the form attached hereto as Exhibit D, and by this
reference made a part hereof, specifically identifying the property being acquired.)
4. Where State shall perform legal or litigation work related to the condemnation
process, Agency acknowledges, and agrees and undertakes to assure that no
member of Agency's board or council, nor Agency's mayor, when such member or
mayor is a practicing attorney, nor Agency's attorney nor any member of the law
firm of Agency's attorney, board or council member, or mayor, will represent any
Party, except Agency, against the State of Oregon, its employees or contractors, in
any matter arising from or related to the Project which is the subject of this
Agreement.
F. Transfer of Right 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 Right of Way Manager. Agency agrees to
provide the State all information and file documentation the State deems necessary to
integrate the right of way into the State's highway system. At a minimum, this includes..
copies of all recorded conveyance documents used to vest title in the name of the
Agency during the right of way acquisition process, and the Agency's Final Report or
Summary Report for each acquisition file that reflects the terms of the acquisition and
all agreements with the property owner(s).
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For purposes of Exhibits B and C, references to Department shall mean State, 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, 1. By signing this Contract, the Contractor is
proposed for debarment, declared ineligible providing the certification set out below.
or voluntarily excluded from covered
transactions by any Federal department or 2. The inability to provide the certification
agency; required below will not necessarily result in
denial of participation in this covered
2. Have not within a three-year period preceding transaction. The Contractor shall explain
this Contract been convicted of or had a civil why he or she cannot provide the
judgment rendered against them for certification set out below. This explanation
commission of fraud or a criminal offense in will be considered in connection with the
connection with obtaining, attempting to Department determination to enter into this
obtain or performing a public(federal, state or transaction. Failure to furnish an explanation
local) transaction or contract under a public shall disqualify such person from
transaction; violation of federal or state participation in this transaction.
antitrust statutes or commission of 3. The certification in this clause is a material
embezzlement, theft, forgery, bribery representation of fact upon which reliance
falsification or destruction of records, making was placed when the Department
false statements or receiving stolen property; determined to enter into this transaction. If it
is later determined that the Contractor
3. Are not presently indicted for or otherwise knowingly rendered an erroneous
criminally or civilly charged by a certification, in addition to other remedies
governmental entity (federal, state or local) available to the Federal Government or the
with commission of any of the offenses Department may terminate this transaction
enumerated in paragraph (1)(b) of this for cause of default.
certification; and
4. The Contractor shall provide immediate
4. Have not within a three-year period preceding written notice to the Department if at any
this Contract had one or more public time the Contractor learns that its
transactions (federal, state or local) certification was erroneous when submitted
terminated for cause or default. or has become erroneous by reason of
changed circumstances.
Where the Contractor is unable to certify to any of
the statements in this certification, such prospective 5. The ' terms "covered transaction",
participant shall submit a written explanation to "debarred", "suspended", "ineligible", "lower
Department. tier covered transaction", "participant",
"person", "primary covered transaction",
List exceptions. For each exception noted, indicate "principal", and "voluntarily excluded", as
to whom the exception applies, initiating agency, used in this clause, have the meanings set
and dates of action. If additional space is required, out in the Definitions and Coverage sections
attach another page with the following heading: of the rules implementing Executive Order
Certification Exceptions continued, Contract Insert. 12549. You may contact the Department's
Program Section (Tel. (503) 986-3400) to
EXCEPTIONS: which this proposal is being submitted for
assistance in obtaining a copy of those
Exceptions will not necessarily result in denial of regulations.
award, but will be considered in determining
Contractor responsibility. Providing false information 6. The Contractor agrees by entering into this
may result in criminal prosecution or administrative Contract that, should the proposed covered
sanctions. transaction be entered into, it shall not
knowingly enter into any lower tier covered
The Contractor is advised that by signing this transactions with a person who is debarred,
Contract, the Contractor is deemed to have signed suspended, declared ineligible or voluntarily
this certification. excluded from participation in this covered
II. INSTRUCTIONS FOR CERTIFICATION transaction, unless authorized by the
REGARDING DEBARMENT, SUSPENSION, Department or agency entering into this
AND OTHER RESPONSIBILITY MATTERS— transaction.
PRIMARY COVERED TRANSACTIONS
7. The Contractor further agrees by entering
into this Contract that it will include the
Addendum to Form FHWA-1273 titled, 1. By signing and submitting this Contract, the
"Appendix B--Certification Regarding prospective lower tier participant is providing
Debarment, Suspension, Ineligibility and 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 representation of fact upon which reliance
without 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 agency with which this transaction
transaction that it is not debarred, originated may pursue available remedies,
suspended, ineligible or voluntarily excluded including suspension and/or debarment.
from the covered transaction, unless it
knows that the certification is erroneous. A 3. The prospective lower tier participant shall
participant may decide the method and provide immediate written notice to the
frequency by which it determines the person to which this Contract is submitted if
eligibility of its principals. Each participant at any time the prospective lower tier
may, but is not required to, check the participant learns that its certification was
Nonprocurement List published by the U. S. erroneous when submitted or has become
General Services Administration. erroneous by reason of changed
circumstances.
9. Nothing contained in the foregoing shall be
construed to require establishment of a 4. The terms "covered transaction",
system of records to render in good faith the "debarred", "suspended", "ineligible", "lower
certification required by this clause. The tier covered transaction", "participant",
knowledge and information of a participant "person", "primary covered transaction",
is not required to exceed that which is "principal", "proposal", and "voluntarily
normally possessed by a prudent person in excluded", as used in this clause, have the
the ordinary course of business dealings. meanings set out in the Definitions and
Coverage sections of rules implementing
10. Except for transactions authorized under Executive Order 12549. You may contact
paragraph 6 of these instructions, if a the person to which this Contract is
participant in a covered transaction submitted for assistance in obtaining a copy
knowingly enters into a lower tier covered 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
III. 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. Contractor warrants that he has not
7. A participant in a covered transaction may employed or retained any company or
rely upon a certification of a prospective person, other than a bona fide employee
participant in a lower tier covered working solely for Contractor, to solicit or
transaction that it is not debarred, secure this Contract and that he has not
suspended, ineligible or voluntarily excluded paid or agreed to pay any company or
from the covered transaction, unless it person, other than a bona fide employee
knows that the certification is erroneous. A working solely for Contractors, any fee,
participant may decide the method and commission, percentage, brokerage fee,
frequency by which it determines the gifts or any other consideration contingent
eligibility of its principals. Each participant upon or resulting from the award or making
may, but is not required to, check the of this Contract. For breach or violation of
nonprocurement list. this warranting, Department shall have the
right to annul this Contract without liability or
8. Nothing contained in the foregoing shall be in its discretion to deduct from the Contract
construed to require establishment of a price or consideration or otherwise recover,
system of records to render in good faith the the full amount of such fee, commission,
certification required by this clause. The percentage, brokerage fee, gift or contingent
knowledge and information of a participant fee.
is not required to exceed that which is
normally possessed by a prudent person in 2. Contractor shall not engage, on a full or
the ordinary course of business dealings. part-time basis or other basis, during the
period of the Contract, any professional or
9. Except for transactions authorized under technical personnel who are or have been at
paragraph 5 of these instructions, if a any time during the period of this Contract,
participant in a covered transaction in the employ of Department, except
knowingly enters into a lower tier covered regularly retired employees, without written
transaction with a person who is suspended, consent of the public employer of such
debarred, ineligible or voluntarily excluded person.
from participation in this transaction, in
addition to other remedies available to the 3. Contractor agrees to perform consulting
Federal Government, the department or services with that standard of care, skill and
agency with which this transaction diligence normally provided by a
originated may pursue available remedies, professional in the performance of such
including suspension and/or debarment. consulting services on work similar to that
hereunder. Department shall be entitled to
Certification Regarding Debarment, rely on the accuracy, competence, and
Suspension, Ineligibility, and Voluntary completeness of Contractor's services.
Exclusion--Lower Tier Covered
Transactions V. NONDISCRIMINATION
a. The prospective lower tier participant During the performance of this Contract,
certifies, by entering into this Contract, Contractor, for himself, his assignees and
that neither it nor its principals is successors in interest, hereinafter referred to as
presently debarred, suspended, Contractor, agrees as follows:
proposed for debarment, declared
ineligible or voluntarily excluded from 1. Compliance with Regulations. Contractor
participation in this transaction by any agrees to comply with Title VI of the Civil
Federal department or agency. Rights Act of 1964, and Section 162(a) of
the Federal-Aid Highway Act of 1973 and
b. Where the prospective lower tier the Civil Rights Restoration Act of 1987.
participant is unable to certify to any of Contractor shall comply with the regulations
the statements in this certification, such of the Department of Transportation relative
prospective participant shall submit a to nondiscrimination in Federally assisted
written explanation to Department. programs of the Department of
Transportation, Title 49, Code of Federal
IV. EMPLOYMENT Regulations, Part 21, as they may be
amended from time to time (hereinafter
referred to as the Regulations), which are
incorporated by reference and made a part or on behalf of Contractor, state that all
of this Contract. Contractor, with regard to qualified applicants will receive
the work performed after award and prior to consideration for employment without
completion of the Contract work, shall not regard to race, creed, color, sex or
discriminate on grounds of race, creed, national origin.
color, sex or national origin in the selection
and retention of subcontractors, including 4. Information and Reports. Contractor will
procurement of materials and leases of provide all information and reports required
equipment. Contractor shall not participate by the Regulations or orders and
either directly or indirectly in the instructions issued pursuant thereto, and will
discrimination prohibited by Section 21.5 of permit access to his books, records,
the Regulations, including employment accounts, other sources of information, and
practices, when the Contract covers a his facilities as may be determined by
program set forth in Appendix B of the Department or FHWA as appropriate, and
Regulations. shall set forth what efforts he has made to
obtain the information.
2. Solicitation for Subcontractors, including
Procurement of Materials and Equipment. In 5. Sanctions for Noncompliance. In the event
all solicitations, either by competitive bidding of Contractor's noncompliance with the
or negotiations made by Contractor for work nondiscrimination provisions of the Contract,
to be performed under a subcontract, Department shall impose such agreement
including procurement of materials and sanctions as it or the FHWA may determine
equipment, each potential subcontractor or to be appropriate, including, but not limited
supplier shall be notified by Contractor of to:
Contractor's obligations under this Contract
and regulations relative to nondiscrimination a. Withholding of payments to Contractor
on the grounds of race, creed, color, sex or under the agreement until Contractor
national origin. complies; and/or
3. Nondiscrimination in Employment (Title VII b. Cancellation, termination or suspension
of the 1964 Civil Rights Act). During the of the agreement in whole or in part.
performance of this Contract, Contractor
agrees as follows: 6. Incorporation of Provisions. Contractor will
include the provisions of paragraphs 1
a. Contractor will not discriminate against through 6 of this section in every
any employee or applicant for subcontract, including procurement of
employment because of race, creed, materials and leases of equipment, unless
color, sex or national origin. Contractor exempt from Regulations, orders or
will take affirmative action to ensure that instructions issued pursuant thereto.
applicants are employed, and that Contractor shall take such action with
employees are treated during respect to any subcontractor or procurement
employment, without regard to their as Department or FHWA may direct as a
race, creed, color, sex or national origin. means of enforcing such provisions,
Such action shall include, but not be including sanctions for noncompliance;
limited to the following: employment, provided, however, that in the event
upgrading, demotion or transfer; Contractor becomes involved in or is
recruitment or recruitment advertising; threatened with litigation with a
layoff or termination; rates of pay or subcontractor or supplier as a result of such
other forms of compensation; and direction, Department may, at its option,
selection for training, including enter into such litigation to protect the
apprenticeship. Contractor agrees to interests of Department, and, in addition,
post in conspicuous places, available to Contractor may request Department to enter
employees and applicants for into such litigation to protect the interests of
employment, notice setting forth the the State of Oregon.
provisions of this nondiscrimination
clause. VI. DISADVANTAGED BUSINESS
ENTERPRISE(DBE) POLICY
b. Contractor will, in all solicitations or
advertisements for employees placed by
In accordance with Title 49, Code of Federal before replacing a DBE or making any change
Regulations, Part 26, Contractor shall agree to in the DBE participation listed. If a DBE is
abide by and take all necessary and unable to fulfill the original obligation to the
reasonable steps to comply with the following Contract, Contractor must demonstrate to
statement: Department the Affirmative Action steps taken
to replace the DBE with another DBE. Failure
DBE POLICY STATEMENT to do so will result in withholding payment on
those items. The monthly documentation will
DBE Policy. It is the policy of the United not be required after the DBE goal commitment
States Department of Transportation (USDOT) is satisfactory to Department.
to practice nondiscrimination on the basis of
race, color, sex and/or national origin in the Any DBE participation attained after the DBE
award and administration of USDOT assist goal has been satisfied should be reported to
contracts. Consequently, the DBE requirements the Departments.
of 49 CFR 26 apply to this Contract.
DBE Definition. Only firms DBE
Required Statement For USDOT Financial certified by the State of Oregon, Department
Assistance Agreement. If as a condition of of Consumer & Business Services, Office of
assistance the Agency has submitted and the Minority, Women & Emerging Small Business,
US Department of Transportation has approved may be utilized to satisfy this obligation.
a Disadvantaged Business Enterprise
Affirmative Action Program which the Agency CONTRACTOR'S DBE CONTRACT GOAL
agrees to carry out, this affirmative action
program is incorporated into the financial DBE GOAL 0 %
assistance agreement by reference.
By signing this Contract, Contractor assures
DBE Obligations. The Department and its that good faith efforts have been made to meet
Contractor agree to ensure that Disadvantaged the goal for the DBE participation specified in
Business Enterprises as defined in 49 CFR 26 the Contract for this project as required by ORS
have the opportunity to participate in the 200.045, and 49 CFR 26.53 and 49 CFR, Part
performance of contracts and subcontracts 26, Appendix A.
financed in whole or in part with Federal funds.
In this regard, Contractor shall take all VII. LOBBYING
necessary and reasonable steps in accordance
with 49 CFR 26 to ensure that Disadvantaged The Contractor certifies, by signing this
Business Enterprises have the opportunity to agreement to the best of his or her knowledge
compete for and perform contracts. Neither and belief, that:
Department nor its contractors shall
discriminate on the basis of race, color, national 1. No Federal appropriated funds have been
origin or sex in the award and performance of paid or will be paid, by or on behalf of the
federally-assisted contracts. The Contractor undersigned, to any person for influencing
shall carry out applicable requirements of 49 or attempting to influence an officer or
CFR Part 26 in the award and administration of employee of any Federal agency, a Member
such contracts. Failure by the Contractor to of Congress, an officer or employee of
carry out these requirements is a material Congress or an employee of a Member of
breach of this Contract, which may result in the Congress in connection with the awarding of
termination of this Contract or such other any Federal contract, the making of any
remedy as Department deems appropriate. Federal grant, the making of any Federal
loan, the entering into of any cooperative
The DBE Policy Statement and Obligations agreement, and the extension, continuation,
shall be included in all subcontracts entered renewal, amendment or modification of any
into under this Contract. Federal contract, grant, loan or cooperative
agreement.
Records and Reports. Contractor shall
provide monthly documentation to Department 2. If any funds other than Federal appropriated
that it is subcontracting with or purchasing funds have been paid or will be paid to any
materials from the DBEs identified to meet person for influencing or attempting to
Contract goals. Contractor shall notify influence an officer or employee of any
Department and obtain its written approval Federal agency, a Member of Congress, an
officer or employee of Congress or an
employee of a Member of Congress in
connection with this agreement, the
undersigned shall complete and submit
Standard Form-LLL, "Disclosure Form to
Report Lobbying", in accordance with its
instructions.
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.
RESOLUTION EXERCISING THE POWER OF EMINENT DOMAN EXHIBIT D
Right of Way Services
WHEREAS City of Tigard may exercise the power of eminent domain pursuant to (Agency's charter)
(statutes conferring authority) and the Law of the State of Oregon generally, when the exercise of such
power is deemed necessary by the City of Tigard's governing body to accomplish public purposes for
which City of Tigard has responsibility;
WHEREAS City of Tigard has the responsibility of providing safe transportation routes for commerce,
convenience and to adequately serve the traveling public;
WHEREAS the project or projects known as Main St.: Rail Corridor to 99W have been planned in
accordance with appropriate engineering standards for the construction, maintenance or improvement
of said transportation infrastructure such that property damage is minimized, transportation promoted,
travel safeguarded; and
WHEREAS to accomplish the project or projects set forth above it is necessary to acquire the interests
in the property described in "Exhibit A," attached to this resolution and, by this reference incorporated
herein; now, therefore
BE IT HEREBY RESOLVED by (Agency's Council, Commission, or Board)
1. The foregoing statements of authority and need are, in fact, the case. The project or
projects for which the property is required and is being acquired are necessary in the public
interest, and the same have been planned, designed, located, and will be constructed in a
manner which will be most compatible with the greatest public good and the least private
injury;
2. The power of eminent domain is hereby exercised with respect to each of the interests in
property described in Exhibit A. Each is acquired subject to payment of just compensation
and subject to procedural requirements of Oregon law;
3. The City of Tigard's staff and the (Agency's Attorney, Counsel, or District's Counsel) are
authorized and requested to attempt to agree with the owner and other persons in interest
as to the compensation to be paid for each acquisition, and, in the event that no satisfactory
agreement can be reached, to commence and prosecute such condemnation proceedings
as may be necessary to finally determine just compensation or any other issue appropriate
to be determined by a court in connection with the acquisition. This authorization is not
intended to expand the jurisdiction of any court to decide matters determined above or
determinable by the (Agency's Council, Commission, or Board).
4. City of Tigard expressly reserves its jurisdiction to determine the necessity or propriety of
any acquisition, its quantity, quality, or locality, and to change or abandon any acquisition.
DATED this day of , 20_
[Complete in the usual style for resolutions of this entity]