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TriMet - Cost Share for Barbur and OR-99W (IG161001) /(7 INTERGOVERNMENTAL AGREEMENT BETWEEN TRIMET AND THE CITY OF TIGARD FOR COST SHARE OBLIGATIONS FOR BARBUR/OR-99W CORRIDOR SAFETY AND ACCESS TO TRANSIT PROJECT h THIS AGREEMENT is made this day of 7�%'��'�'��_f,r 2016, by and between the TRI-COUNTY METROPOLITAN TRANSPORTATION DISTRICT OF OREGON, a mass transit district of the state of Oregon, hereinafter referred to as "TriMet", and THE CITY OF TIGARD, a municipal corporation of the state of Oregon acting by and through its Elected Officials, hereinafter referred to as "City". I. RECITALS 1. TriMet and ODOT have entered into a separate binding Intergovernmental Agreement to administer ODOT Agreement No. 30684: Barbur/OR-99W Corridor Safety & Access to Transit Project ("TriMet/ODOT IGA"). The TriMet/ODOT IGA is attached hereto as Exhibit A. 2. The TriMet/ODOT IGA is a mechanism for ODOT to administer the local projects set out in that agreement. Under the TriMet/ODOT IGA, ODOT has agreed to administer and deliver the following three projects (referred to herein as "City Projects") for the City of Tigard: • SW Commercial St — Design and construct 800 feet on an 8-foot sidewalk along SW Commercial St under the highway structure between Main St and SW Lincoln Ave and install fence between railroad and pedestrians. Project Budget: $900,000. Local Match: $92,430 • SW Commercial St - Construct pedestrian path between SW Center St and Commercial St. Project Budget: $75,000. Local Match: $7,703 • SW Naeve to SW Beef Bend Rd — Design and construct sidewalk infill on 99W northbound. Project Budget: $330,000 Local Match: $33,891 3. TriMet is willing to sign the TriMet/ODOT IGA to facilitate construction of the City Projects, However, TriMet and the City understand and agree that the City Projects are being constructed by ODOT for the benefit of the City. 4. The total cost for the City Projects is estimated to be $1,305,000 and funded as part of the Multimodal Transportation Enhance Program (MTEP). The Funding Ratio for the City Projects is 89.73% of MTEP funds to 10.27% of City funds. MTEP funds are fixed at $1,170,976. The City's contribution is $134,024. 5. The Parties desire to work together and with ODOT to complete the City Projects, under the terms of this Agreement and the TriMet/ODOT IGA. 6. The Parties are authorized to enter into this Agreement pursuant to the provisions of ORS Chapter 190. 1 Now, therefore, in consideration of the mutual promises set forth below and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties hereby agree as follows: II. PARTY RESPONSIBILITIES A. City Responsibilities: 1. City shall be responsible for funding the City Projects at the amount of the local share as set forth in the TriMet/ODOT IGA (10.27 percent, or $134,024) over two fiscal years. TriMet will invoice the City for initial local share of $20,000 within 30 days of execution of this Agreement, and the City shall pay such invoice within 30 days of receipt. TriMet will invoice the City the remaining local share (in the amount of $114,024) on July 1, 2017, and City shall make payment by July 31, 2017. 2. All additional costs related to the City Projects shall be paid by City to TriMet, including all "Project Overruns" (as defined in the TriMet/ODOT IGA) and all other costs related to the City Projects. TriMet shall invoice for any such costs no more than once per month. City shall pay all such amounts within 30 days of receipt of an invoice from TriMet. 3. City shall designate appropriate staff to the City Projects to carry out the City's responsibilities. This includes, but is not limited to, appropriate permitting staff. 4. City's Office of Public Works shall provide oversight and guidance to ODOT as needed for all activities related to the City Projects, including project management, design, right-of-way, public outreach, citizen involvement activities, engineering, permitting, utility coordination, and project construction. 5. City shall review and approve plans and specifications for the City Projects that are developed by ODOT. Per the TriMet/ODOT IGA, ODOT will advertise and award a construction contract to the lowest responsible, responsive bidder, per ODOT policy. 6. City shall facilitate the processing of required permits and provide inspection services of civil and electrical work to ensure the City Projects are constructed to City standards. 7. City shall be responsible for the ownership and maintenance of the fence and pedestrian path constructed along SW Commercial St. B. TriMet Responsibilities: 1. TriMet shall work with the City to assist the City and ODOT in delivering the City Projects. 2. Pursuant to the TriMet/ODOT IGA, TriMet and ODOT shall mutually agree to project decisions regarding design standards, design exceptions, utility relocation expenses, right of way needs, preliminary engineering charges, construction engineering charges, and Contract Change Orders as these decisions may impact the Total Project Cost. TriMet delegates these decisions to City for purposes of City Projects. 2 3. In the event there are "Project Underruns" of the local share (as defined in the TriMet/ODOT IGA) that are returned from ODOT to TriMet, TriMet agrees to pay such underruns to the City. III. GENERAL PROVISIONS 1. Each party has designated a project manager as its formal representative for purposes of this Project: Young Park Andrew Newbury TriMet City of Tigard 1800 SW 1st Avenue, Suite 300 13125 SW Hall Blvd Portland, OR 97201 Tigard, OR 97223 Phone: (503) 962-2138 Phone: (503) 718-2472 Email: parky@trimet.org Email: andrewn@tigard-or.gov The Project Managers are authorized to approve work and billings, to give notices, to execute amendments to this Agreement that do not increase the compensation, to terminate this Agreement and to carry out any other act referred to herein. Either party may designate a different project manager by giving written notification to the other party as provided in this paragraph. City shall appropriately authorize its officials to enter into and execute this Agreement. 2. Relationship of the Parties. Each of the parties hereto shall be deemed an independent contractor for purposes of this Agreement. No representative, agent, employee or contractor of one party shall be deemed to be an employee, agent or contractor of the other party for any purpose, except to the extent specifically provided herein. Nothing herein is intended, nor shall it be construed, to create between the parties any relationship of principal and agent, partnership, joint venture or any similar relationship, and each party hereby specifically disclaims any such relationship. 3. No Third-Party Beneficiary. Except as set forth herein, this Agreement is between the parties and creates no third-party beneficiaries. Nothing in this Agreement gives or shall be construed to give or provide any benefit, direct, indirect or otherwise to third-parties unless third-persons are expressly described as intended to be beneficiaries of its terms. 4. Compliance with Laws. The parties shall comply with all federal, state and local laws, regulations, executive orders and ordinances applicable to the work under this Agreement. If a Party is not in compliance with any law, regulation, executive order or ordinance, it shall take immediate steps to gain compliance. 5. Insurance Requirements. The parties agree to each maintain insurance or self- insurance which meets the following requirements: 5.1 Comprehensive or Commercial General Liability Insurance covering bodily injury and property damage. This insurance shall include personal injury coverage; contractual liability coverage for the indemnity provided under this Agreement; and products/completed operations liability. Combined single limit per 3 occurrence shall not be less than $1,000,000, or the equivalent. Each annual aggregate limit shall not be less than $2,000,000, when applicable. The liability coverage required for performance of the Agreement shall include both TriMet and City as additional insureds, to the extent allowed by law. The party obtaining such insurance shall furnish the other party with a Certificate of Insurance for the limits set out above, which is to be in force and applicable to the Work. The insurance coverage shall not be amended, altered, modified, or canceled without at least thirty (30) days prior written notice to TriMet or City, as applicable. 5.2 Worker's Compensation. TriMet and City, and all employers working under this Agreement, are subject employers under the Oregon Workers' Compensation Law and shall comply with ORS 656.017, which requires them to provide Workers' Compensation coverage for all their subject workers. Each party shall be 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 system contributions, Workers Compensation, unemployment taxes, and state and federal withholdings. 6. Indemnification. Within the limits of the Oregon Constitution and the Oregon Tort Claims Act, codified at ORS 30.260 through 30.300, each of the parties shall hold harmless, indemnify and defend the other and its officers, directors, employees and agents from and against all claims, demands, penalties, and causes of action of any kind or character relating to or arising from this Agreement (including the cost of defense thereof, including attorney fees) in favor of any person on account of personal injury, death, damage to property, or violation of law, which arises out of, or results from, the negligent acts or omissions of the indemnitor, its officers, employees, or agents. 7. Effective and Termination Dates. This Agreement shall be effective upon date all required signatures are obtained and shall terminate upon completion of the City Projects by ODOT. 7.1 Early Termination of Agreement. 7.1.1 City and TriMet, by mutual written agreement, may terminate this Agreement at any time. If such early termination by the City results in money being owed to ODOT under the TriMet/ODOT IGA, City shall pay such amounts to TriMet within 30 days of demand by TriMet. 7.1.2 Either City or TriMet may terminate this Agreement in the event of a breach of the Agreement by the other. Prior to such termination, however, the party seeking the termination shall give the other party written notice of the breach and of the party's intent to terminate. If the breaching party has not entirely cured the breach within thirty days of the notice, then the party giving the notice may terminate the Agreement at any time thereafter by giving a written notice of termination. If such early termination results from a breach by the City, and results in money being owed to ODOT under the TriMet/ODOT IGA, City shall pay such amounts to TriMet within 30 days of demand by TriMet. 8. Remedies. The remedies provided under this Agreement shall not be exclusive. The parties also shall be entitled to any other equitable and legal remedies that are available. 9. Oregon Law, Dispute Resolution and Forum. This Agreement shall be construed according to the laws of the State of Oregon. TriMet and City shall negotiate in good 4 faith to resolve any dispute arising out of this Agreement. If the parties are unable to resolve any dispute within fourteen calendar days, the parties are free to pursue any legal remedies that may be available. Any litigation between City and TriMet arising under this Agreement or out of work performed under this Agreement shall occur, if in the state courts, in the Multnomah City Circuit Court, and if in the federal courts, in the United States District Court for the District of Oregon located in Portland, Oregon. 10. Assignment. Neither TriMet nor City shall assign this Agreement, in whole or in part, or any right or obligation hereunder, without the prior written approval of the other. 11. Severability/Survivability. If any provision of this Agreement is found to be illegal or unenforceable, this Agreement nevertheless shall remain in full force and effect and the provision shall be stricken. All provisions concerning indemnity survive the termination of this Agreement for any cause. 12. Interpretation of Agreement. This Agreement shall not be construed for or against any party by reason of the authorship or alleged authorship of any provision. The Section headings contained in this Agreement are for ease of reference only and shall not be used in constructing or interpreting this Agreement. 13. Entire Agreement; Modification; Waiver. This Agreement constitutes the entire Agreement between the parties on the subject matter hereof and supersede all prior or contemporaneous written or oral understandings, representations or communications of every kind. There are no understandings, Agreements, or representations, oral or written, not specified herein regarding this Agreement. No course of dealing between the parties and no usage of trade will be relevant to supplement any term used in this Agreement. No waiver, consent, modification or change of terms of this Agreement shall bind either party unless in writing and signed by both parties. 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 a party to enforce any provision of this Agreement shall not constitute a waiver by a party of that or any other provision. 14. Inspection of Records. Each of the parties shall have the right to inspect, at any reasonable time, such records in the possession, custody or control of the other party as it deems necessary for review of the other party's obligations and its rights under this Agreement. The cost of such inspection shall be borne by the inspecting party. IN WITNESS WHEREOF, the parties hereto have executed this Intergovernmental Agreement. TRI-MET METROPOLITAN CITY OF TIGARD, by T S ORTATION TRICT OF OREGON andthroughits elected officials B y ` Steven D. Witter, Executive Director Date t/ 2"i Date By V 5 C -Ao4ftr- F-1 Date - ( l 41!:? APPROVED AS TO LEGAL APPROVED AS TO LEGAL SUFF1 CY FOR TRIMET SUFFICIENCY FOR CITY By: By: Lance Erz, Deputy General Counsel City Attorney Date q! !±1l 6 Date `� 1 I 11. 6 -JQ(ol ao 1 Exhibit A Misc. Contracts and Agreements No.30684 LOCAL AGENCY AGREEMENT MULTIMODAL TRANSPORTATION ENHANCE PROGRAM (MTEP) OR99W: Corridor Safety & Access to Transit 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 TRIMET, acting by and through its Board of Directors, 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, 366.572 and 366.576, State may enter into cooperative agreements with counties, cities and units of local governments for the performance of work on certain types of improvement projects with the allocation of costs on terms and conditions mutually agreeable to the contracting parties. 2. OR 99W and a portion of SW Barbur Boulevard are a part of the state highway system under the jurisdiction and control of the Oregon Transportation Commission (OTC). A portion of SW Barbur Boulevard (not part of the OR99W route system), SW Hooker Street, SW Lane Street, SW Naito Parkway, SW 19th Street and SW 53rd Avenue are all a part of the city street system under the jurisdiction and control of the City of Portland. SW Commercial Street, SW Naeve Street, and SW Durham Road are all a part of the city street system under the jurisdiction and control of the City of Tigard. SW Beef Bend Road, and SW Bull Mountain Road are all a part of the county road system under the jurisdiction and control of Washington County. 3. Agency has agreed that State will deliver the Preliminary Engineering (PE) and Right of Way Acquisition (RW) phases of this project on behalf of the Agency. NOW THEREFORE the premises being in general as stated in the foregoing Recitals, it is agreed by and between the Parties hereto as follows: DEFINITIONS 1. "Contract Award" means the issuance of a Notice to Proceed (NTP) to the Preliminary Engineering consultant. 2. "Funding Ratio" means the relationship between MTEP funds and Total Project Cost and Other Funds. This ratio is established at the time the agreement is executed and does not change during the course of the project. The ratio governs the obligation of MTEP funds at the time of con structionlconsultant award or Project Closeout. 3. "Match" means the minimum amount State or Agency must contribute to match the federal aid funding portion of the project. 4. "MTEP" means Multimodal Transportation Enhance Program and may be funded by a combination of federal and state funds. "Other Funds" means other funding required to complete the project including but not limited to state, federal, and agency funds. Key No. 18838 Exhibit A State/TriMet Agreement No. 30684 5. "Other Funds" means other funding required to complete the project including but not limited to state, federal, and agency funds. 6. "Project Closeout" means project is ready to close as there are no more expenditures associated with project. 7. "Project Overruns" means the final cost estimate at Contract Award exceeds the estimated Total Project Cost estimate in this Agreement, or the final actual project costs exceed the final cost estimate at Contract Award. 8. "Project Underrun" means the final cost estimate at Contract Award is below the estimated Total Project Cost in this Agreement, or the final actual project costs are below the final cost estimate at Contract Award. Total Project Cost means the estimated amount as show in this Agreement. This amount will include MTEP funds, local matching funds, and other funds as required to complete project as stated in this Agreement. TERMS OF AGREEMENT 1. Under such authority, Agency and State agree to State to conducting the Preliminary Engineering and Right of Way phases for the "OR99W: Corridor Safety&Access to Transit" project on behalf of Agency, hereinafter referred to as "Project' and as further defined below. The location of the Project is approximately as shown on the map attached hereto, marked "Exhibit A," and by this reference made a part hereof. The construction of this Project will be addressed in a subsequent agreement or amendment to this Agreement. Agency must submit executed agreement(s) to State covering the maintenance of all tangible Project deliverables prior to State authorizing the obligation and release of construction funds. 2. The Project Description and Deliverables are as follows: a. Description: Conduct preliminary engineering and acquire right-of-way for modifications to improve safety and access to transit within the OR99W Corridor. Project will include design for sidewalk infill and pedestrian paths, pedestrian crossings, enhancing existing bus stops, bus activated extended green time at multiple signals, fencing and retaining walls and improvements to drainage as needed. b. Deliverables are the design of the following: • SW Barbur Blvd —City of Portland portion: o SW Hooker St — Sidewalk infill SW Lane St and SW Naito Pkwy — An enhanced pedestrian crossing at the intersection of Barbur Blvd and Lane/Naito Parkway • SW Barbur Blvd —State portion: o SW 19t"Ave—Sidewalk infill • SW 53rd Ave — Sidewalk infill, shared bike/ped facility, and improvements 2 Exhibit A StatelTriMet Agreement No. 30684 to drainage as appropriate • OR 99W : • SW Commercial St— 800 feet of an 8-foot sidewalk along SW Commercial St under the highway structure between Main Street and SW Lincoln Avenue and a fence between railroad and pedestrians o SW Commercial St — Pedestrian path between SW Center Street and Commercial Street • SW Naeve St to SW Beef Bend Rd —Sidewalk infill on 99W northbound o SW Bull Mountain Rd (NB) — Sidewalk infill, a retaining wall, bus shelter and pad, and address drainage as appropriate SW Bull Mountain Rd (SB)—Sidewalk infill, a bus pad and adjust guardrail Transit Signal Priority — Add priority and operations treatments at intersections between 1-5 and Durham Rd (Signal priority at up to 16 locations, operations treatments at up to 6 locations) • Retaining walls and drainage improvements as appropriate Both Parties agree that an amendment to this Agreement is required if any changes are made to the Project as described in Project Description and Deliverables above. 3. Both Parties agree that Right of Way Service Agreements will be executed between State and the affected local jurisdictions before State initiates acquisition of right of way from that local jurisdiction. Permits to access right of way affected by the Project will be obtained from the affected local jurisdiction before the construction phase of the Project. 4. The Project shall be conducted as a part of the Multimodal Transportation Enhance Program (MTEP)with funds provided under Title 23, United States Code and may include a combination of federal and state funds. The Total Project Cost, as described in this Agreement, is estimated at $838,883, which is subject to change. MTEP federal and state funding for the Project, which are the PE and RW phases, shall be limited to $752,730. Agency shall be responsible for all remaining costs, including 10.27 percent match for all MTEP eligible costs, any non-participating costs, and all costs in excess of the available federal or state funds. State may rescind MTEP funds for failure to submit maintenance agreement(s) as per Terms of Agreement, paragraph 1, before entering into an amendment for the construction of the Project. If State rescinds MTEP funding, Agency will be invoiced for all MTEP reimbursements paid for the Project up to that point. 5. The Funding Ratio for this Project is 89.73% of MTEP funds to 10.27% Agency funds and applies to Project Underruns. The Funding Ratio for this Project does not apply in the case of Project Overruns. 6. If, at the time of Contract Award or Project Closeout, the Project cost is below the 3 Exhibit A StatelTriMet Agreement No. 30684 estimated Total Project Cost in this Agreement, MTEP funding and Other Funds will be obligated proportionally based on the Funding Ratio. Any unused MTEP funds, will be retained by State, and will not be available for use by Agency for this Agreement or any other projects. 7. Project Overruns which occur at the time of Contract Award and/or at the time of Project Closeout are the responsibility of the Agency. 8. Project decisions regarding design standards, design exceptions, right of way needs, preliminary engineering charges, shall be mutually agreed upon between the Agency and the State, as these decisions may impact the Total Project Cost. 9. State will submit the requests for federal funding to Federal Highway Administration (FHWA). The federal funding for this Project is contingent upon approval of each funding request by FHWA. Any work performed prior to acceptance by FHWA or outside the scope of work will be considered nonparticipating and paid for at Agency expense. 10.State considers Agency a subrecipient of the federal funds it receives as reimbursement under this Agreement. The Catalog of Federal Domestic Assistance (CFDA) number and title for this Project is 20.205, Highway Planning and Construction. 11.The term of this Agreement shall begin on the date all required signatures are obtained and shall terminate upon completion of the Project and final payment or ten (10) calendar years following the date all required signatures are obtained, whichever is sooner. 12.This Agreement may be terminated by mutual written consent of both Parties. 13.State may terminate this Agreement effective upon delivery of written notice to Agency, or at such later date as may be established by State, under any of the following conditions: a. If Agency fails to provide services called for by this Agreement within the time specified herein or any extension thereof. b. If Agency fails to perform any of the other provisions of this Agreement, or so fails to pursue the work as to endanger performance of this Agreement in accordance with its terms, and after receipt of written notice from State fails to correct such failures within ten (10) days or such longer period as State may authorize. c. If Agency fails to provide payment of its share of the cost of the Project. d. If State fails to receive funding, appropriations, limitations or other expenditure authority sufficient to allow State, in the exercise of its reasonable administrative discretion, to continue to make payments for performance of this Agreement. e. If federal or state laws, regulations or guidelines are modified or interpreted in such a way that either the work under this Agreement is prohibited or if State is prohibited from paying for such work from the planned funding source. 4 Exhibit A State/TriMet Agreement No. 30684 f. If State is unable to secure right of way agreements for right of way that will be transferred to local jurisdictions. 14a. Information required by 2 CFR 200.331(a), except for (xiii) Indirect cost rate, shall be contained in the USDOT FHWA Federal Aid Project Agreement for this Project, a copy of which shall be provided by State to Agency with the Notice to Proceed. b. The indirect cost rate for this project at the time the agreement is written is zero percent. 15.Any termination of this Agreement shall not prejudice any rights or obligations accrued to the Parties prior to termination. 16.The Special and Standard Provisions attached hereto, marked Attachments 1 and 2, respectively, are by this reference made a part hereof. The Standard Provisions apply to all federal-aid projects and may be modified only by the Special Provisions, The Parties hereto mutually agree to the terms and conditions set forth in Attachments 1 and 2. In the event of a conflict, this Agreement shall control over the attachments, and Attachment 1 shall control over Attachment 2. 17.Agency, as a recipient of federal funds, pursuant to this Agreement with the State, shall assume sole liability for Agency's breach of any federal statutes, rules, program requirements and grant provisions applicable to the federal funds, and shall, upon Agency's breach of any such conditions that requires the State to return funds to FHWA, hold harmless and indemnify the State for an amount equal to the funds received under this Agreement; or if legal limitations apply to the indemnification ability of Agency, the indemnification amount shall be the maximum amount of funds available for expenditure, including any available contingency funds or other available non-appropriated funds, up to the amount received under this Agreement. 18.State and Agency agree that if any term or provision of this Agreement is declared by a court of competent jurisdiction to be invalid, unenforceable, illegal or in conflict with any law, the validity of the remaining terms and provisions shall not be affected, and the rights and obligations of the Parties shall be construed and enforced as if the Agreement did not contain the particular term or provision held to be invalid. 19.Agency certifies and represents that the individual(s) signing this Agreement has been authorized to enter into and execute this Agreement on behalf of Agency, under the direction or approval of its governing body, commission, board, officers, members or representatives, and to legally bind Agency. 20.This Agreement may be executed in several counterparts (facsimile or otherwise) all of which when taken together shall constitute one agreement binding on all Parties, notwithstanding that all Parties are not signatories to the same counterpart. Each copy of this Agreement so executed shall constitute an original. 21.This Agreement and attached exhibits constitute the entire agreement between the Parties on the subject matter hereof. In the event of conflict, the body of this Agreement and the attached Exhibits will control over Project application and documents provided by Agency to 5 Exhibit A State/TriMet Agreement No. 30684 State. No waiver, consent, modification or change of terms of this Agreement shall bind either party unless in writing and signed by both Parties and all necessary approvals have been obtained. Such waiver, consent, modification or change, if made, shall be effective only in the specific instance and for the specific purpose given. The failure of State to enforce any provision of this Agreement shall not constitute a waiver by State of that or any other provision. 22. State Contact for this Agreement is Kelly Brooks, Policy and Development Manager, 123 NW Flanders Street, Portland, OR 97209, 503-731-3087, Kelly.s.brooks@odot.state.or.us, or assigned designee upon individual's absence. State shall notify the other Party in writing of any contact information changes during the term of this Agreement. 23.Agency's Contact for this Project is Young Park, Manager In-Streets Projects, 1800 SW 1 sc Avenue, Suite 300, Portland, OR 97201, 503.962.2138, parky@trimet.org or assigned designee upon individual's absence. Agency shall notify the other Party in writing of any contact information changes during the term of this Agreement. THE PARTIES, by execution of this Agreement, hereby acknowledge that their signing representatives have read this Agreement, understand it, and agree to be bound by its terms and conditions. SIGNATURE PAGE TO FOLLOW 6 Exhibit A ,StatefTrimet Agreement No. 30684 This Project Is in the 2015-2018 Statewide Transportation Improvement Program (STIP), (Key#18838)that was adopted by the Oregon Transpartatlon Commission on December 18, 2014(or subsequently approved by amendment to the STIP). TRIMET, by and through Its elected STATE OF OREGON,by and through officials ltspepa4mept of Transportation Highway p(vtston Administrator Title��„,.Ute 't i�4'�.pfu�, Date `���11 b Date �t »-� APPR VAL RECOMMENDED By By Title e n 1 Enhance Program Mgr. Date Date 8y .—-------- APPROV D TO LEGAL Region 1 Manager SUFFICIE Date $Y Agency Co / APPROVED AS TO LEGAL Date b _ SUFFICIENCY Actency Contact: BY 2&k/` K Young Park Assistant Attorney General 1800 SW 16"Avenue, Suite 300 Portland, OR 97201 . ..------.- 503.962.2138 parkyd—trimet.org State Contact: Kelly Brooks 123 NW Flanders Street Portland, OR 97209 503.731.3087 Kelly.a.brooks@odot.state.or.us r Exhibit A Misc. Contracts and Agreements No.30684 EXHIBIT A— Project Location Map i m n F� - 0 ' u ` CQMMERC7 !5t M LL V to � � w L1 � C11 Q in Key No. 18838 Exhibit A State/TriMet Agreement No. 30684 ATTACHMENT NO. 1 to Agreement No. 30684 SPECIAL PROVISIONS 1. State or State's consultant shall conduct all work components necessary to complete the Preliminary Engineering and Right of Way phases of the Project. 2. Agency guarantees the availability of Agency funding in an amount required to fully fund Agency's share of the Project. 3. State and Agency agree that the useful life of this Project is defined as 20 years. 4. If Agency fails to meet the requirements of this Agreement or the underlying federal regulations, State may withhold the Agency's proportional share of Highway Fund distribution necessary to reimburse State for costs incurred by such Agency breach. Agency will be ineligible to receive or apply for any Title 23, United States Code funds until State receives full reimbursement of the costs incurred. 9 Exhibit A Agency/State Agreement No. 30684 ATTACHMENT NO. 2 FEDERAL STANDARD PROVISIONS PROJECT ADMINISTRATION 1. State (ODOT) is acting to fulfill its responsibility to the Federal Highway Administration (FHWA) by the administration of this Project, and Agency (i.e. county, city, unit of local government, or other state agency) hereby agrees that State shall have full authority to carry out this administration. If requested by Agency or if deemed necessary by State in order to meet its obligations to FHWA, State will act for Agency in other matters pertaining to the Project. Prior to taking such action, State will confer with Agency concerning actions necessary to meet federal obligations. State or its consultant, with Agency involvement shall, if necessary, appoint and direct the activities of a Citizen's Advisory Committee and/or Technical Advisory Committee, conduct a hearing and recommend the preferred alternative. State and Agency shall each assign a person in responsible charge "liaison" to coordinate activities and assure that the interests of both Parties are considered during all phases of the Project. 2. Any project that uses federal funds in project development is subject to plans, specifications and estimates (PS&E) review and approval by FHWA or State acting on behalf of FHWA prior to advertisement for bid proposals, regardless of the source of funding for construction. 3. State will provide or secure services to perform plans, specifications and estimates (PS&E), construction contract advertisement, bid, award, contractor payments and contract administration. A State-approved consultant may be used to perform preliminary engineering, right of way and construction engineering services. PROJECT FUNDING REQUEST 4. State shall submit a separate written Project funding request to FHWA requesting approval of federal-aid participation for each project phase including a) Program Development (Planning), b) Preliminary Engineering (National Environmental Policy Act- NEPA, Permitting and Project Design), c) Right of Way Acquisition, d) Utilities, and e) Construction (Construction Advertising, Bid and Award). Any work performed prior to FHWA's approval of each funding request will be considered nonparticipating and paid for at Agency expense. State, the consultant or Agency shall not proceed on any activity in which federal-aid participation is desired until such written approval for each corresponding phase is obtained by State. State shall notify Agency in writing when authorization to proceed has been received from FHWA. All work and records of such work shall be in conformance with FHWA rules and regulations. FINANCE 5. Federal funds shall be applied toward Project costs at the current federal-aid matching ratio, unless otherwise agreed and allowable by law. Agency shall be responsible for the entire match amount for the federal funds and any portion of the Project, which is not covered by federal funding, unless otherwise agreed to and specified in the intergovernmental Agreement (Project Agreement). Agency must obtain written approval from State to use in-kind STDPRO-2015.doc Rev. 04-28-2014 10 Exhibit A Agency/State Agreement No. 30684 contributions rather than cash to satisfy all or part of the matching funds requirement. If federal funds are used, State will specify the Catalog of Federal Domestic Assistance (CFDA) number in the Project Agreement. State will also determine and clearly state in the Project Agreement if recipient is a subrecipient or vendor, using criteria 2 CFR 200.330. 6. If the estimated cost exceeds the total matched federal funds available, Agency shall deposit its share of the required matching funds, plus 100 percent of all costs in excess of the total matched federal funds. Agency shall pay one hundred (100) percent of the cost of any item in which FHWA will not participate. If Agency has not repaid any non-participating cost, future allocations of federal funds or allocations of State Highway Trust Funds to Agency may be withheld to pay the non-participating costs. If State approves processes, procedures, or contract administration outside the Local Agency Guidelines Manual that result in items being declared non-participating by FHWA, such items deemed non-participating will be negotiated between Agency and State. 7. Agency agrees that costs incurred by State and Agency for services performed in connection with any phase of the Project shall be charged to the Project, unless otherwise mutually agreed upon by the Parties. 8. Agency's estimated share and advance deposit. a) Agency shall, prior to commencement of the preliminary engineering and/or right of way acquisition phases, deposit with State its estimated share of each phase. Exception may be made in the case of projects where Agency has written approval from State to use in-kind contributions rather than cash to satisfy all or part of the matching funds requirement. b) Agency's construction phase deposit shall be one hundred ten (110) percent of Agency's share of the engineer's estimate and shall be received prior to award of the construction contract. Any additional balance of the deposit, based on the actual bid must be received within forty-five (45) days of receipt of written notification by State of the final amount due, unless the contract is cancelled. Any balance of a cash deposit in excess of amount needed, based on the actual bid, will be refunded within forty-five (45) days of receipt by State of the Project sponsor's written request. c) Pursuant to Oregon Revised Statutes (ORS) 366.425, the advance deposit may be in the form of 1) money deposited in the State Treasury (an option where a deposit is made in the Local Government Investment Pool), and an Irrevocable Limited Power of Attorney is sent to State's Active Transportation Section, Funding and Program Services Unit, or 2) an Irrevocable Letter of Credit issued by a local bank in the name of State, or 3)cash. 9. If Agency makes a written request for the cancellation of a federal-aid project; Agency shall bear one hundred (100) percent of all costs incurred as of the date of cancellation. If State was the sole cause of the cancellation, State shall bear one hundred (100) percent of all costs incurred. If it is determined that the cancellation was caused by third parties or circumstances beyond the control of State or Agency, Agency shall bear all costs, whether incurred by State or Agency, either directly or through contract services, and State shall bear any State administrative costs incurred. After settlement of payments, State shall deliver surveys, maps, field notes, and all other data to Agency. STDPRO-2015.doc Rev. 04-28-2014 11 Exhibit A Agency/State Agreement No. 30684 10.Agency shall follow the requirements stated in the Single Audit Act. Agencies expending $500,000 or more in Federal funds (from all sources) in its fiscal year beginning prior to December 26, 2014, shall have a single organization-wide audit conducted in accordance with the Single Audit Act of 1984, PL 98-502 as amended by PL 104-156 and subject to the requirements of 49 CFR Parts 18 and 19. Agencies expending $750,000 or more in federal funds (from all sources) in a fiscal year beginning on or after December 26, 2014 shall have a single organization-wide audit conducted in accordance with the provisions of 2 CFR part 200, subpart F. Agencies expending less than $500,000 in Federal funds in a fiscal year beginning prior to December 26, 2014, or less than $750,000 in a fiscal year beginning on or after that date, is exempt from Federal audit requirements for that year. Records must be available for review or audit by appropriate officials based on the records retention period identified in the Project Agreement. The cost of this audit can be partially prorated to the federal program. 11. Agency shall make additional deposits, as needed, upon request from State. Requests for additional deposits shall be accompanied by an itemized statement of expenditures and an estimated cost to complete the Project. 12.Agency shall present invoices for one hundred (100) percent of actual costs incurred by Agency on behalf of the Project directly to State's Liaison for review, approval and reimbursement to Agency. Costs will be reimbursed consistent with federal funding provisions and the Project Agreement. Such invoices shall identify the Project by the name of the Project Agreement, reference the Project Agreement number, and shall itemize and explain all expenses for which reimbursement is claimed. Invoices shall be presented for periods of not less than one-month duration, based on actual expenses to date. All invoices received from Agency must be approved by State's Liaison prior to payment. Agency's actual costs eligible for federal-aid or State participation shall be those allowable under the provisions of the Federal-Aid Policy Guide (FAPG), Title 23 CFR parts 1.11, 140 and 710. Final invoices shall be submitted to State for processing within forty-five (45) days from the end of each funding phase as follows: a) preliminary engineering, which ends at the award date of construction b) last payment for right of way acquisition and c) contract completion for construction. Partial billing (progress payment) shall be submitted to State within forty-five (45)days from date that costs are incurred. Invoices submitted after 45 days may not be eligible for reimbursement by FHWA. Agency acknowledges and agrees that State, the Oregon Secretary of State's Office, the federal government, and their duly authorized representatives shall have access to the books, documents, papers, and records of Agency which are directly pertinent to the Project Agreement for the purpose of making audit, examination, excerpts, and transcripts for a period ending on the later of six (6)years following the date of final voucher to FHWA or after resolution of any disputes under the Project Agreement. Copies of such records and accounts shall be made available upon request. For real property and equipment, the retention period starts from the date of disposition (2 CFR 200.333(c). 13.Agency shall, upon State's written request for reimbursement in accordance with Title 23, CFR part 630.112(c) 1 and 2, as directed by FHWA, reimburse State for federal-aid funds distributed to Agency if any of the following events occur: a) Right of way acquisition is not undertaken or actual construction is not started by the close of the twentieth federal fiscal year following the federal fiscal year in which the federal-aid funds were authorized for right of way acquisition. Agency may submit a written request to State's Liaison for a time extension beyond the twenty (20) year limit with no repayment of federal funds and State STDPRO-2015.doc Rev. 04-28-2014 12 Exhibit A Agency/State Agreement Na. 30684 will forward the request to FHWA. FHWA may approve this request if it is considered reasonable. b) Right of way acquisition or actual construction of the facility for which preliminary engineering is undertaken is not started by the close of the tenth federal fiscal year following the federal fiscal year in which the federal-aid funds were authorized. Agency may submit a written request to State's Liaison for a time extension beyond the ten (10) year limit with no repayment of federal funds and State will forward the request to FHWA. FHWA may approve this request if it is considered reasonable. 14. State shall, on behalf of Agency, maintain all Project documentation in keeping with State and FHWA standards and specifications. This shall include, but is not limited to, daily work records, quantity documentation, material invoices and quality documentation, certificates of origin, process control records, test results, and inspection records to ensure that the Project is completed in conformance with approved plans and specifications. 15.State shall submit all claims for federal-aid participation to FHWA in the normal manner and compile accurate cost accounting records. State shall pay all reimbursable costs of the Project. Agency may request a statement of costs-to-date at any time by submitting a written request. When the actual total cost of the Project has been computed, State shall furnish Agency with an itemized statement of final costs. Agency shall pay an amount which, when added to said advance deposit and federal reimbursement payment, will equal one hundred (100) percent of the final total actual cost. Any portion of deposits made in excess of the final total costs of the Project, minus federal reimbursement, shall be released to Agency. The actual cost of services provided by State will be charged to the Project expenditure account(s) and will be included in the total cost of the Project. STANDARDS 16.Agency and State agree that minimum design standards on all local agency jurisdictional roadway or street projects on the National Highway System (NHS) and projects on the non- NHS shall be the American Association of State Highway and Transportation Officials (AASHTO) standards and be in accordance with State's Oregon Bicycle & Pedestrian Design Guide (current version). State or the consultant shall use either AASHTO's A Policy on Geometric Design of Highways and Streets (current version) or State's Resurfacing, Restoration and Rehabilitation (3R) design standards for 3R projects. State or the consultant may use AASHTO for vertical clearance requirements on Agency's jurisdictional roadways or streets. 17. Agency agrees that if the Project is on the Oregon State Highway System or State-owned facility, that design standards shall be in compliance with standards specified in the current ODOT Highway Design Manual and related references. Construction plans for such projects shall be in conformance with standard practices of State and all specifications shall be in substantial compliance with the most current Oregon Standard Specifications for Highway Construction and current Contract Plans Development Guide. 18. State and Agency agree that for all projects on the Oregon State Highway System or State- owned facility any design element that does not meet ODOT Highway Design Manual design standards must be justified and documented by means of a design exception. State and Agency further agrees that for all projects on the NHS, regardless of funding source; any STDPRO-2015.doc Rev. 04-28-2014 13 Exhibit A Agency/State Agreement No. 30684 design element that does not meet AASHTO standards must be justified and documented by means of a design exception. State shall review any design exceptions on the Oregon State Highway System and retains authority for their approval. FHWA shall review any design exceptions for projects subject to Focused Federal Oversight and retains authority for their approval. 19. Agency agrees all traffic control devices and traffic management plans shall meet the requirements of the current edition of the Manual on Uniform Traffic Control Devices and Oregon Supplement as adopted in Oregon Administrative Rule (OAR) 734-020-0005. State or the consultant shall, on behalf of Agency, obtain the approval of the State Traffic Engineer prior to the design and construction of any traffic signal, or illumination to be installed on a state highway pursuant to OAR 734-020-0430. 20.The standard unit of measurement for all aspects of the Project shall be English Units. All Project documents and products shall be in English. This includes, but is not limited to, right of way, environmental documents, plans and specifications, and utilities. PRELIMINARY & CONSTRUCTION ENGINEERING 21. Preliminary engineering and construction engineering may be performed by either a) State, b) State-approved consultant, or c) certified agency. Engineering work will be monitored by State or certified agency to ensure conformance with FHWA rules and regulations. Project plans, specifications and cost estimates shall be performed by either a) State, b) State- approved consultant or c) certified agency. State shall review and approve Project plans, specifications and cost estimates. State shall, at project expense, review, process and approve, or submit for approval to the federal regulators, all environmental statements. State shall, offer Agency the opportunity to review and approve the documents prior to advertising for bids. 22. Agency may request State's two-tiered consultant selection process as allowed by OAR 137- 048-0260 to perform architectural, engineering, photogrammetry, transportation planning, land surveying and related services (A&E Services) as needed for federal-aid transportation projects. Use of the State's processes is required to ensure federal reimbursement. State will award and execute the contracts. State's personal services contracting process and resulting contract document will follow Title 23 CFR part 172, 2 CFR part 1201, ORS 279A.055, 279C.110, 279C.125, OAR 137-048-0130, OAR 137-048-0220(4) and State Personal Services Contracting Procedures as approved by the FHWA. Such personal services contract(s) shall contain a description of the work to be performed, a project schedule, and the method of payment. No reimbursement shall be made using federal-aid funds for any costs incurred by Agency or the consultant prior to receiving authorization from State to proceed. 23.The party responsible for performing preliminary engineering for the Project shall, as part of its preliminary engineering costs, obtain all Project related permits necessary for the construction of said Project. Said permits shall include, but are not limited to, access, utility, environmental, construction, and approach permits. All pre-construction permits will be obtained prior to advertisement for construction. 24.State or certified agency shall prepare construction contract and bidding documents, advertise for bid proposals, and award all construction contracts. STDPRO-2015.doc Rev. 04-28-2014 14 Exhibit A Agency/State Agreement No. 30684 25. Upon State's or certified agency's award of a construction contract, State or certified agency shall perform quality assurance and independent assurance testing in accordance with the FHWA-approved Quality Assurance Program found in State's Manual of Field Test Procedures, process and pay all contractor progress estimates, check final quantities and costs, and oversee and provide intermittent inspection services during the construction phase of the Project. 26. State shall, as a Project expense, assign a liaison to provide Project monitoring as needed throughout all phases of Project activities (preliminary engineering, right-of-way acquisition, and construction). State's liaison shall process reimbursement for federal participation costs. REQUIRED STATEMENT FOR United States Department of Transportation (USDOT) FINANCIAL ASSISTANCE AGREEMENT 27. By signing the Federal-Aid Agreement to which these Federal Standard Provisions are attached, Agency agrees to adopt State's DBE Program Pian, available at http://www.oregon.gov/ODOT/CS/CIVILRIGHTS/pages/sbe/dbe/dbe program.aspx#plan. Agency shall not discriminate on the basis of race, color, national origin, or sex in the award and performance of any USDOT-assisted contract or in the administration of its DBE program or the requirements of 49 CFR part 26. Agency agrees to take all necessary and reasonable steps under 49 CFR part 26 to ensure nondiscrimination in the award and administration of USDOT-assisted contracts. State's DBE program, as required by 49 CFR part 26 and as approved by USDOT, is incorporated by reference in this Project Agreement. Implementation of this program is a legal obligation and failure to carry out its terms shall be treated as a violation of this Project Agreement. Upon notification to the recipient of its failure to carry out its approved program, the USDOT may impose sanctions as provided for under part 26 and may, in appropriate cases, refer the matter for enforcement under 18 United States Code (USC) 1001 and/or the Program Fraud Civil Remedies Act of 1986 (31 USC 3801 et seq.). Disadvantaged Business Enterprises (DBE) Obligations 28. State and Agency agree to incorporate by reference the requirements of 49 CFR part 26 and State's DBE Program Plan, as required by 49 CFR part 26 and as approved by USDOT, into all contracts entered into under this Project Agreement. The following required DBE assurance shall be included in all contracts: "The contractor or subcontractor shall not discriminate on the basis of race, color, national origin, or sex in the performance of this contract. The contractor shall cavy out applicable requirements of Title 49 CFR part 26 in the award and administration of federal-aid contracts. Failure by the contractor to carry out these requirements is a material breach of this contract, which may result in the termination of this contract or such other remedy as Agency deems appropriate. Each subcontract the contractor signs with a subcontractor must include the assurance in this paragraph (see 49 CFR 26.13(b))." 29. State and Agency agree to comply with all applicable civil rights laws, rules and regulations, including Title V and Section 504 of the Rehabilitation Act of 1973, the Americans with Disabilities Act of 1990 (ADA), and Titles VI and VII of the Civil Rights Act of 1964. 30. The Parties hereto agree and understand that they will comply with all applicable federal, state, and local laws, regulations, executive orders and ordinances applicable to the work STDPRO-2015.doc Rev. 04-28-2014 15 Exhibit A °_ -'iS--_ Agreement N¢. 30684 including, but not limited to, the provisionsofORS 27QC.5O5, 27QC.515. 27SC.52D' 27QC.53O and 2796.270' incorporated herein bvreference and made part hereof; Title 23 CFR parts 1.11, 140. 635. 710. and 771; Title 49 CFR parts 24and 28; . 2CFR 1201; Title 23, U8C, Federal-Aid Highway Act; Title 41, Chapter 1, USC 51-58, Anti-Kickback Act; Title 42 USC; Uniform Relocation Assistance and Floo\ Property Acquisition Policy Act of 1970. as mmended, the provisions ofthe FAPGond Ff/N/A Contract Administration Core Curriculum Participants Manual& Reference Guide. State and Agency agree that FHVVAr1279Required Contract Provisions shall be included in all contracts and subcontracts verbatim and not by reference. RIGHT OF WAY 31. State and the consultant, if any, agree that right nfway activities shall beinaccordance with the Uniform Relocation Assistance and Real Property Acquisition Policies Act nf 1070' as amended, ORS Chapter 35, FAPG, CFR, and the ODOT Right of Way Manual, Title 23 CFR part 710 and Title 49 CFR part 24. State, at Project expenee, nhmU review all right of way activities engaged in by Agency to ensure compliance with all laws and regulations. 32. State is responsible for proper acquisition of the necessary right of way and easements for construction and maintenance ofprojects. State orthe consultant may peorrn acquisition of the necessary right of way and easements for construction and maintenance of the Project in accordance with the OD{JTRight of Wan/ Manua/ and with the prior approval from State's Region Right OfWay office. 33. Regardless of who acquires or performs any of the right of way activiUes, a right of way services agreement shall be created by State's Region Right of Way office setting forth the responsibilities and activities to be accomplished by each Party. If the Project has the potential of needing right of way, to ensure compliance in the event that right of way is unexpectedly needed, u right of way services agreement will be required. State, at Project expense, shall be responsible for requesting the obligation ofproject fundingfrorn FHYVA. State, at Project expense, shall be responsible for coordinating certification of the right of way, and providing oversight and monitoring. Funding authorization requests for federal right of vvoy funds must be sent through State's Liaison, who will forward the request to State's Region Right of Way office on all projects. Gtmho or the consultant must receive written authorization to proceed from State's Right ofWay Section prior to beginning right of way activities. All projects must have right of way certification coordinated through State's Region Right of Way office to declare onnnp|ienoe and project readiness for construction /even for projects where no federal funds were used for right of way, but federal funds were used elsewhere on a project). State's Liaison shall contact State's Region Flight of Way office for additional information orclarification mnbehalf ofAgency. 34. Agency agrees that if any naa| property purchased with federal-aid participation is no longer needed for the originally authorized purpose, the disposition of such property shall be subject to applicable rules and regulations, which are in effect at the time of disposition. Reimbursement to State and FHVVA of the required proportionate shares of the fair market value may ba required. 35. State or the consultant shall ensure that all project right of way monumneAtation will be conducted inconformance with ORS 2O9.155. STOPRO-2015.doc Rev. 04-28-2014 16 Exhibit A Agency/State Agreement No. 30684 36. State and Agency grants each other authority to enter onto the other's right of way for the performance of non-construction activities such as surveying and inspection of the Project. RAILROADS 37. State or Agency shall follow State established policy and procedures when impacts occur on railroad property. The policy and procedures are available through the State's Liaison, who will contact State's Railroad Liaison on behalf of Agency. Only those costs allowable under Title 23 CFR part 140 subpart 1, and Title 23 part 646 subpart B shall be included in the total Project costs; all other costs associated with railroad work will be at the sole expense of Agency, or others. Agency may request State, in writing and, at Project expense, to provide railroad coordination and negotiations through the State's Utility & Railroad Liaison on behalf of Agency. However, State is under no obligation to agree to perform said duties. UTILITIES 38. State, the consultant, or Agency shall follow State established statutes, policies and procedures when impacts occur to privately or publicly-owned utilities. Policy, procedures and forms are available through the State Utility Liaison or State's Liaison. State, the consultant or Agency shall provide copies of all signed utility notifications, agreements and Utility Certification to the State Utility & Railroad Liaison. Only those utility relocations, which are eligible for reimbursement under the FAPG, Title 23 CFR part 645 subparts A and B, shall be included in the total Project costs; all other utility relocations shall be at the sole expense of Agency, or others. Agency may send a written request to State, at Project expense, to arrange for utility relocations/adjustments lying within Agency jurisdiction. This request must be submitted no later than twenty-one (21) weeks prior to bid let date. Agency shall not perform any utility work on state highway right of way without first receiving written authorization from State. GRADE CHANGE LIABILITY 39. Agency, if a County, acknowledges the effect and scope of ORS 105.755 and agrees that all acts necessary to complete construction of the Project which may alter or change the grade of existing county roads are being accomplished at the direct request of the County. 40. Agency, if a City, hereby accepts responsibility for all claims for damages from grade changes. Approval of plans by State shall not subject State to liability under ORS 105.760 for change of grade. 41.Agency, if a City, by execution of the Project Agreement, gives its consent as required by ORS 373.030(2) to any and all changes of grade within the City limits, and gives its consent as required by ORS 373.050(1) to any and all closure of streets intersecting the highway, if any there be in connection with or arising out of the Project covered by the Project Agreement. MAINTENANCE RESPONSIBILITIES 42.Agency shall, at its own expense, maintain operate, and provide power as needed upon Project completion at a minimum level that is consistent with normal depreciation and/or service demand and throughout the useful life of the Project. The useful life of the Project is defined in the Special Provisions. State may conduct periodic inspections during the life of STDPRO-2015.doc Rev. 04-28-2014 17 Exhibit A Agency/State Agreement No. 30684 the Project to verify that the Project is properly maintained and continues to serve the purpose for which federal funds were provided. Maintenance and power responsibilities shall survive any termination of the Project Agreement. In the event the Project will include or affect a state highway, this provision does not address maintenance of that state highway. CONTRIBUTION 43. If any third party makes any claim or brings any action, suit or proceeding alleging a tort as now or hereafter defined in ORS 30.260 ("Third Party Claim") against State or Agency with respect to which the other Party may have liability, the notified Party must promptly notify the other Party in writing of the Third Party Claim and deliver to the other Party a copy of the claim, process, and all legal pleadings with respect to the Third Party Claim. Each Party is entitled to participate in the defense of a Third Party Claim, and to defend a Third Party Claim with counsel of its own choosing. Receipt by a Party of the notice and copies required in this paragraph and meaningful opportunity for the Party to participate in the investigation, defense and settlement of the Third Party Claim with counsel of its own choosing are conditions precedent to that Party's liability with respect to the Third Party Claim. 44.With respect to a Third Party Claim for which State is jointly liable with Agency (or would be if joined in the Third Party Claim), State shall contribute to the amount of expenses (including attorneys' fees), judgments, fines and amounts paid in settlement actually and reasonably incurred and paid or payable by Agency in such proportion as is appropriate to reflect the relative fault of State on the one hand and of Agency on the other hand in connection with the events which resulted in such expenses, judgments, fines or settlement amounts, as well as any other relevant equitable considerations. The relative fault of State on the one hand and of Agency on the other hand shall be determined by reference to, among other things, the Parties' relative intent, knowledge, access to information and opportunity to correct or prevent the circumstances resulting in such expenses, judgments, fines or settlement amounts. State's contribution amount in any instance is capped to the same extent it would have been capped under Oregon law, including the Oregon Tort Claims Act, QRS 30.260 to 30.300, if State had sole liability in the proceeding. 45. With respect to a Third Party Claim for which Agency is jointly liable with State (or would be if joined in the Third Party Claim), Agency shall contribute to the amount of expenses (including attorneys' fees), judgments, fines and amounts paid in settlement actually and reasonably incurred and paid or payable by State in such proportion as is appropriate to reflect the relative fault of Agency on the one hand and of State on the other hand in connection with the events which resulted in such expenses, judgments, fines or settlement amounts, as well as any other relevant equitable considerations. The relative fault of Agency on the one hand and of State on the other hand shall be determined by reference to, among other things, the Parties' relative intent, knowledge, access to information and opportunity to correct or prevent the circumstances resulting in such expenses, judgments, fines or settlement amounts. Agency's contribution amount in any instance is capped to the same extent it would have been capped under Oregon law, including the Oregon Tort Claims Act, ORS 30.260 to 30.300, if it had sole liability in the proceeding. ALTERNATIVE DISPUTE RESOLUTION 46. The Parties shall attempt in good faith to resolve any dispute arising out of this Project Agreement. In addition, the Parties may agree to utilize a jointly selected mediator or arbitrator(for non-binding arbitration)to resolve the dispute short of litigation. STDPRO-2015.doc Rev. 04-28-2014 18 Exhibit A Agency/State Agreement No. 30684 WORKERS' COMPENSATION COVERAGE 47.All employers, including Agency, that employ subject workers who work under this Project Agreement in the State of Oregon shall comply with ORS 656.017 and provide the required Workers' Compensation coverage unless such employers are exempt under ORS 656.126. Employers Liability Insurance with coverage limits of not less than five hundred thousand ($500,000) must be included. State and Agency shall ensure that each of its contractors compiles with these requirements. LOBBYING RESTRICTIONS—pursuant to Form FHWA-1273, Required Contract Provisions 48. Agency certifies by signing the Project Agreement that: a) No federal appropriated funds have been paid or will be paid, by or on behalf of the undersigned, to any person for influencing or attempting to influence an officer or employee of any federal agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with the awarding of any federal contract, the making of any federal grant, the making of any federal loan, the entering into of any cooperative agreement, and the extension, continuation, renewal, amendment, or modification of any federal contract, grant, loan, or cooperative agreement. b) If any funds other than federal appropriated funds have been paid or will be paid to any person for influencing or attempting to influence an officer or employee of any federal agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with this federal contract, grant, loan, or cooperative agreement, the undersigned shall complete and submit Standard Form-LLL, "Disclosure Form to Report Lobbying," in accordance with its instructions. c) The undersigned shall require that the language of this certification be included in the award documents for all subawards at all tiers (including subgrants, and contracts and subcontracts under grants, subgrants, loans, and cooperative agreements)which exceed one hundred thousand dollars ($100,000), and that all such subrecipients shall certify and disclose accordingly. d) This certification is a material representation of fact upon which reliance was placed when this transaction was made or entered into. Submission of this certification is a prerequisite for making or entering into this transaction imposed by Title 31, USC Section 1352. e) Any person who fails to file the required certification shall be subject to a civil penalty of not less than ten thousand dollars ($10,000) and not more than one hundred thousand dollars ($100,000)for each such failure. STDPRO-2015.doc Rev. 04-28-2014 19