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HomeMy WebLinkAbout2012-210 IGA - ODOT TGM #28905 - Unified Code Phase 2 TGM Grant Agreement No.28905 TGM File Code C1B1-12 EA#TG12GF32 INTERGOVERNMENTAL AGREEMENT Code Assistance for the City of Ashland Unified Development Code Phase 2 THIS INTERGOVERNMENTAL AGREEMENT ("Agreement") is made and entered into by and between the STATE OF OREGON, acting by and through its Department of Transportation ("ODOT" or"Agency"), and City of Ashland ("City"). RECITALS 1. The Transportation and Growth Management ("TGM") Program is a joint program of ODOT and the Oregon Department of Land Conservation and Development. 2. The TGM Program includes a program of community assistance for local governments to assist with better integration of transportation and land use planning and development of new ways to manage growth in order to achieve compact pedestrian, bicycle, and transit friendly urban development. 3. This TGM Project(as defined below) is financed with federal Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users ("SAFETEA-LU") funds. State funds that are paid under this Agreement to the Consultant (as defined below) are used as match for SAFETEA-LU funds. 4. By authority granted in ORS 190.110, state agencies may enter into agreements with units of local government or other state agencies to perform any functions and activities that the parties to the agreement or their officers or agents have the duty or authority to perform. 5. ODOT intends to enter into a PSK (as defined below) with a Consultant (as defined below) for the Project that benefits the City, and as a condition to entering into this PSK and making the Consultant's Amount available, ODOT requires the City to execute and agree to the terms of this Agreement 6. The parties desire to enter into this Agreement for their mutual benefit. NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows: SECTION 1. DEFINITIONS Unless the context requires otherwise, the following terms, when used in this Agreement, shall have the meanings assigned to them below: - 1 - TGM Grant Agreement No.28905 TGM File Code C I B 1-12 EA#TG 12GF32 A. "City's Project Manager" means the individual designated by City as its project manager for the Project. B. "Consultant" means the personal services contractor(s) hired by ODOT to do the tasks indicated in Exhibit A as being the responsibility of such contractor(s). C. "Consultant's Amount" means the Amount payable by ODOT to the Consultant for the deliverables described in Exhibit A for which the Consultant is responsible. D. "Direct Project Costs" means those costs which are directly associated with the Project. These may include the salaries and benefits of personnel assigned to the Project and the cost of supplies, postage, travel, and printing. General administrative costs, capital costs, and overhead are not Direct Project Costs. Any jurisdiction or metropolitan planning organization that has federally approved indirect cost plans may treat such indirect costs as Direct Project Costs. E. "Federally Eligible Costs" means those costs which are Direct Project Costs of the type listed in Exhibit D incurred by Consultant during the term of this Agreement. F. "ODOT's Contract Administrator" means the individual designated by ODOT to be its contract administrator for this Agreement. G. "PSK" means the personal services contract(s) executed between ODOT and the Consultant related to the portion of the Project that is the responsibility of the Consultant. H. "Project" means the project described in Exhibit A. I. "Termination Date" has the meaning set forth in Section 2.A below. J. "Work Product" has the meaning set forth in Section 4.I below. SECTION 2. TERMS OF AGREEMENT A. Term. This Agreement becomes effective on the date on which all parties have signed this Agreement and all approvals (if any) required to be obtained by ODOT have been received. This Agreement terminates on June 30, 2013 ("Termination Date"). B. Consultant's Amount. The Consultant's Amount shall not exceed $46,500 and is disbursed as provided under the PSK. - 2 - TGM Grant Agreement No.28905 TGM File Code Cl BI-12 EA#TG 12GF32 SECTION 3. CITY'S REPRESENTATIONS, WARRANTIES, AND CERTIFICATION A. City represents and warrants to ODOT as follows: 1. It is a municipality duly organized and existing under the laws of the State of Oregon. 2. It has full legal right and authority to execute and deliver this Agreement and to observe and perform its duties, obligations, covenants and agreements hereunder and to undertake and complete the Project. 3. All official action required to be taken to authorize this Agreement has been taken, adopted and authorized in accordance with applicable state law and the organizational documents of City. 4. This Agreement has been executed and delivered by an authorized officer(s) of City and constitutes the legal, valid and binding obligation of City enforceable against it in accordance with its terms. 5. The authorization, execution and delivery of this Agreement by City, the observation and performance of its duties, obligations, covenants and agreements hereunder, and the undertaking and completion of the Project do not and will not contravene any existing law, rule or regulation or any existing order, injunction,judgment, or decree of any court or governmental or administrative agency, authority or person having jurisdiction over it or its property or violate or breach any provision of any agreement, instrument or indenture by which City or its property is bound. 6. The statement of work attached to this Agreement as Exhibit A has been reviewed and approved by the necessary official(s) of City. B. As federal funds are involved in this Project, City, by execution of this Agreement, makes the certifications set forth in Exhibits B and C. SECTION 4. GENERAL COVENANTS OF CITY A. City shall complete the Project; provided, however, that City shall not be liable for the quality or completion of that part of the Project which Exhibit A describes as the responsibility of the Consultant. - 3 - TGM Grant Agreement No.28905 TGM File Code C1B1-12 EA#TG12GF32 B. City shall, in a good and workmanlike manner, perform the work, and provide the deliverables, for which City is identified in Exhibit A as being responsible. C. City shall perform such work identified in Exhibit A as City's responsibility as an independent contractor and shall be exclusively responsible for all costs and expenses related to its employment of individuals to perform such work. City shall also be responsible for providing for employment-related benefits and deductions that are required by law, including, but not limited to, federal and state income tax withholdings, unemployment taxes, workers' compensation coverage, and contributions to any retirement system. D. All employers, including City, 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. Employers Liability insurance with coverage limits of not less than $500,000 must be included. City shall ensure that each of its contractors complies with these requirements. E. City shall not enter into any subcontracts to accomplish any of the work described in Exhibit A, unless it first obtains written approval from ODOT. F. City agrees to cooperate with ODOT's Contract Administrator. At the request of ODOT's Contract Administrator, City agrees to: (1) Meet with the ODOT's Contract Administrator; and (2) Form a project steering committee (which shall include ODOT's Contract Administrator) to oversee the Project. G. City shall comply with all federal, state and local laws, regulations, executive orders and ordinances applicable to the work under this Agreement, including, without limitation, applicable provisions of the Oregon Public Contracting Code. Without limiting the generality of the foregoing, City expressly agrees to comply with: (1) Title VI of Civil Rights Act of 1964; (2) Title V and Section 504 of the Rehabilitation Act of 1973; (3) the Americans with Disabilities Act of 1990 and ORS 659A.142; (4) all regulations and administrative rules established pursuant to the foregoing laws; and (5) all other applicable requirements of federal and state civil rights and rehabilitation statutes, rules and regulations. H. City shall maintain all fiscal records relating to this Agreement in accordance with generally accepted accounting principles. In addition, City shall maintain any other records pertinent to this Agreement in such a manner as to clearly - 4 - TGM Grant Agreement No.28905 TGM File Code Cl B I-12 EA#TG12GF32 document City's performance. City acknowledges and agrees that ODOT, the Oregon Secretary of State's Office and the federal government and their duly authorized representatives shall have access to such fiscal records and other books, documents, papers, plans, and writings of City that are pertinent to this Agreement to perform examinations and audits and make copies, excerpts and transcripts. City shall retain and keep accessible all such fiscal records, books, documents, papers, plans, and writings for a minimum of six (6)years, or such longer period as may be required by applicable law, following final payment and termination of this Agreement, or until the conclusion of any audit, controversy or litigation arising out of or related to this Agreement, whichever date is later. I. To the extent it has any rights in the Work Product granted to it pursuant to the PSK, ODOT hereby grants to City a royalty free, non-exclusive license to reproduce any Work Product for distribution upon request to members of the public. SECTION 5. CONSULTANT ODOT shall enter into a PSK with the Consultant to accomplish the work described in Exhibit A as being the responsibility of the Consultant. A. Selection of the Consultant will be conducted by ODOT in accordance with ODOT procedures with the participation; B. ODOT will review and approve Consultant's work, billings and progress reports; C. City will appoint a Project Manager to be City's principal contact person for ODOT's Contract Administrator and the Consultant on all matters dealing with the Project. SECTION 6. ODOT'S REPRESENTATIONS AND COVENANTS A. ODOT certifies that, at the time this Agreement is executed, sufficient funds are authorized and available for expenditure to finance ODOT's portion of this Agreement within the appropriation or limitation of its current biennial budget. B. The statement of work attached to this Agreement as Exhibit A has been reviewed and approved by the necessary official(s) of ODOT. - 5 - TGM Grant Agreement No.28905 TGM File Code CIBI-12 EA#TG 12GF32 C. ODOT will assign a Contract Administrator for this Agreement who will be ODOT's principal contact person regarding administration of this Agreement, the monitoring of the Consultant's work, and the review and approval of the Consultant's work, billings and progress reports. D. ODOT shall enter into a PSK with the Consultant to perform the work described in Exhibit A designated as being the responsibility of the Consultant, and in such a case ODOT agrees to pay the Consultant in accordance with the terms of the PSK up to the Consultant's Amount. SECTION 7. TERMINATION This Agreement may be terminated by mutual written consent of all parties. ODOT may terminate this Agreement effective upon delivery of written notice to City, or at such later date as may be established by ODOT under, but not limited to, any of the following conditions: A. City fails to complete work specified in Exhibit A within the time specified in Exhibit A, or fails to perform any of the provisions of this Agreement and does not correct any such failure within 10 days of receipt of written notice or the date specified by ODOT in such written notice. B. Consultant fails to complete work specified in Exhibit A within the time specified in this Agreement or the PSK, including any extensions thereof, and does not correct any such failure within 10 days of receipt of written notice or the date specified by ODOT in such written notice. C. If federal or state laws, regulations or guidelines are modified or interpreted in such a way that either the work under this Agreement or the PSK is prohibited or ODOT is prohibited from paying for such work from the planned funding source. D. If ODOT fails to receive funding, appropriations, limitations or other expenditure authority sufficient to allow ODOT, in the exercise of its reasonable administrative discretion, to continue to make payments for performance of this Agreement or the PSK. In the case of termination pursuant to A, B, C or D above, ODOT shall have any remedy at law or in equity. Any termination of this Agreement shall not prejudice any right or obligations accrued to the parties prior to termination. - 6 - TGM Grant Agreement No.28905 TGM File Code Cl BI-12 EA#TG 12GF32 SECTION 8. GENERAL PROVISIONS A. Time is of the essence of this Agreement. B. Except as otherwise expressly provided in this Agreement, any notices to be given hereunder shall be given in writing by personal delivery, facsimile, or mailing the same, postage prepaid, to MOT or City at the address or number set forth on the signature page of this Agreement, or to such other addresses or numbers as either party may hereafter indicate pursuant to this Section. Any communication or notice so addressed and mailed is in effect five (5) days after the date postmarked. Any communication or notice delivered by facsimile shall be deemed to be given when receipt of the transmission is generated by the transmitting machine. To be effective against ODOT, such facsimile transmission must be confirmed by telephone notice to ODOT's Contract Administrator. Any communication or notice by personal delivery shall be deemed to be given when actually delivered. C. MOT and City are the only parties to this Agreement and are the only parties entitled to enforce the terms of this Agreement. Nothing in this Agreement gives, is intended to give, or shall be construed to give or provide any benefit or right not held by or made generally available to the public, whether directly, indirectly or otherwise, to third persons (including but not limited to any Consultant) unless such third persons are individually identified by name herein and expressly described as intended beneficiaries of the terms of this Agreement. D. Sections 4(IT), 4(I), and 8 of this Agreement and any other provision which by its terms is intended to survive termination of this Agreement shall survive. E. The parties agree as follows: (a) Contribution. 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 ODOT or Grantee ("Notified Party") with respect to which the other party ("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 the Other Party of the notice and copies required in this paragraph and meaningful opportunity for the Other Party to participate in the investigation, defense and settlement of the Third Party Claim with counsel of its own choosing are conditions precedent to the Other Party's liability with respect to the Third Party Claim. - 7 - TGM Grant Agreement No.28905 TGM File Code C1B1-12 EA#TG12GF32 With respect to a Third Party Claim for which ODOT is jointly liable with the Grantee (or would be if joined in the Third Party Claim ), ODOT 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 the Grantee in such proportion as is appropriate to reflect the relative fault of ODOT on the one hand and of the Grantee 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 ODOT on the one hand and of the Grantee 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. The ODOT's contribution amount in any instance is capped to the same extent it would have been capped under Oregon law, including but not limited to the Oregon Tort Claims Act, ORS 30.260 to 30.300, if ODOT had sole liability in the proceeding. With respect to a Third Party Claim for which the Grantee is jointly liable with ODOT (or would be if joined in the Third Party Claim), the Grantee 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 ODOT in such proportion as is appropriate to reflect the relative fault of the Grantee on the one hand and of ODOT 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 the Grantee on the one hand and of ODOT 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. The Grantee's contribution amount in any instance is capped to the same extent it would have been capped under Oregon law, including but not limited to the Oregon Tort Claims Act, ORS 30.260 to 30.300, if it had sole liability in the proceeding. (b) Choice of Law; Designation of Forum; Federal Forum. (1) The laws of the State of Oregon(without giving effect to its conflicts of law principles) govern all matters arising out of or relating to this Agreement, including, without limitation, its validity, interpretation, construction, performance, and enforcement. (2) Any party bringing a legal action or proceeding against any other party arising out of or relating to this Agreement shall bring the legal action or proceeding in the Circuit Court of the State of Oregon for Marion County (unless Oregon law requires that it be brought and conducted in another county). Each party hereby consents to the exclusive jurisdiction of such court, waives any objection to venue, and waives any claim that such forum is an inconvenient forum. (3) c)Notwithstanding Section 8.E (b)(2), if a claim must be brought in a federal forum, then it must be brought and adjudicated solely and exclusively within the United States District Court for the District of Oregon. This Section 8.E(b)(3c) applies to a claim brought against the State of Oregon only to the extent Congress has appropriately abrogated the State of Oregon's sovereign immunity and is not consent by the State of - 8 - TGM Grant Agreement No.28905 TGM File Code CIB1-12 EA#TG12GF32 Oregon to be sued in federal court. This Section 8.E(b)(3c) is also not a waiver by the State of Oregon of any form of defense or immunity, including but not limited to sovereign immunity and immunity based on the Eleventh Amendment to the Constitution of the United States. (c) Alternative Dispute Resolution. The parties shall attempt in good faith to resolve any dispute arising out of this Agreement. This may be done at any management level, including at a level higher than persons directly responsible for administration of the Agreement. In addition, the parties may agree to utilize ajointly selected mediator or arbitrator(for non-binding arbitration) to resolve the dispute short of litigation. F. This Agreement and attached Exhibits (which are by this reference incorporated herein) 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 modification or change of terms of this Agreement shall bind either party unless in writing and signed by all parties and all necessary approvals have been obtained. Budget modifications and adjustments from the work described in Exhibit A must be processed as an amendment(s)to this Agreement and the PSK. No waiver or consent shall be effective unless in writing and signed by the party against whom such waiver or consent is asserted. 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 ODOT to enforce any provision of this Agreement shall not constitute a waiver by ODOT of that or any other provision. G. 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. On December 1, 2010 the Director of the Oregon Department of Transportation approved DIR-06, in which authority is delegated from the Director of the Oregon Department of Transportation to the Operations Deputy Director and Transportation Development Division Administrator, to approve agreements with local governments, other state agencies, federal governments, state governments, other countries, and tribes as described in ORS 190 developed in consultation with the Chief Procurement Officer. - 9 - TGM Grant Agreement No.28905 TGM File Code CIB1-12 EA it TGl20F32 City City Of'Ashland By: . Official's Signature) ��_ AP OVER AS;,Pp FORM SignV ur (Printed Name and Title of Official) j p / Date: Z' Date l l ODOT STATE OF OREGON, by and ti-trough its Department of Transportation By: Jerri Bohard, Division Administrator Transportation Development Division Date: Contact Names: 0.r1 •I- Q,L Maria Harris City of Ashlond City Hall,20 East Main Street Ashland,OR 97520-1849 Phone: 5415522045 Fax: 541-488-5311 E-Mail: harrismQashland.or.us . Bill Holmstrom,Contract Administrator Transportation and Growth Management Program 635 Capitol Street NE,Suite 150 Salem,OR 97301 Phone: 503-373-0050 Ext265 Fax: 503-378-5518 E-Mail: bill.ltolmstromrtstate.or.us 10 - TGM Grant Agreement No.28905 TGM File Code C 11 1-12 EA#TG 12G F32 STATEMENT OF WORK Oregon Transportation and Growth Management Program(TGM) Smart Development Code Assistance Project for the City of Ashland Ashland Unified Development Code—Phase 2 A. PROJECT MANAGEMENT TEAM ("PMT") Consultant—Siegel Planning Services Scot Siegel scot @siegelplanning.com 16067 SW Boones Ferry Road 503-699-5850 Lake Oswego,OR 97035 City of Ashland Maria Harris, Planning Manager harrism @ashland.or.us Department of Community Development 541-552-2045 20 E Main Street Ashland,OR 97520 Agency—TGM Code Assistance Program Bill Holmstrom, Project Manager bill.holmstrom @state.or.us Oregon Department of Land Conservation& Development 503-373-0050 Ext.265 635 Capitol Street NE, Suite 150 Salem, OR 97301 ODOT Regional Planner John McDonald john.mcdonald @odot.state.or.us Oregon Department of Transportation 541-957-3688 3500 NW Stewart Parkway Roseburg,OR 97470 DLCD Regional Representative Josh LeBombard josh.lebombard @state.or.us Oregon Department of Land Conservation& Development 541-414-7932 673 Market Street Medford,OR 97504 B. PROJECT BACKGROUND AND OBJECTIVES Background The City of Ashland Land Use Ordinance(ALUO)has been incrementally amended numerous times since it was originally adopted in 1964. Each update was prepared and adopted independently.Many of these updates were part of projects to plan for compact, transportation-efficient development. Some of these projects were funded by TGM. - ll - TGM Grant Agreement No.28905 TGM File Code Cl BI-12 EA#TG12GF32 There are now several documents that comprise the City's land use regulations and standards. As a result,today's collection of development regulations present obstacles to smart development as they are often confusing, difficult to navigate,repetitious,and inconsistent. The City of Ashland is undertaking a project to combine the ALUO and related development standards into a Unified Land Use Code with improved organization,wording, formatting and graphics.The focus of the project is reorganizing the existing development standards into one user-friendly document that will remove existing barriers to transportation-efficient development. The project will also include an evaluation of the planning application process and green development measures,and preparation of code amendment options in these areas consistent with TGM objectives. This project was initiated by the City of Ashland and the first phase of this work(Phase 1) was funded by the City. Phase 1 is currently being completed.The City has requested TGM Code Assistance to complete the second phase of the project. Project Objectives 1. Draft an updated development code that includes all parts of the City's development standards in one consistent document to remove impediments to smart development. 2. Include updated standards to be consistent with the City's goals and TGM objectives in the areas of procedures,economic development,sustainability,and green development. 3. Engage the community in a meaningful public process in order to gain their input and use the results to edit and refine the code update. 4. Guide the resulting updated code through the Adoption process. Purpose of Contract-Transportation Relationships and Benefits The TGM Program is ajoint effort of the Oregon Department of Transportation(ODOT)and the Oregon Department of Land Conservation and Development(DLCD). The purposes of TGM are to strengthen the capability of local governments to effectively manage growth and comply with the Transportation Planning Rule, to integrate transportation and land use planning, and to encourage transportation-efficient land uses that support modal choice and the efficient performance of transportation facilities and services. This project will meet TGM objectives by removing barriers in the development code to the implementation of compact, mixed-use,transportation-efficient development patterns. The project will use work completed in previous TGM projects and ensure consistent implementation throughout the City. C. GENERAL PROVISIONS Project Management Project management tasks are integrated into each of the tasks in this Work Order Contract(WOC),but are described here to establish a framework for managing the project. A Project Management Team(PMT), comprised of a City Project Manager,Agency Project Manager, and Consultant shall provide overall guidance for the project. PMT shall meet as specified within individual tasks to coordinate logistics of the project and to give feedback to Consultant. PMT shall meet by telephone conference;the duration of each meeting shall not exceed two hours. City shall lead Planning Commission Work Sessions and Public Hearings as described in this SOW. City shall provide all necessary public notices and notifications. - 12 - TGM Grant Agreement No.28905 TGM File Code CIB1-12 EA#TG12GF32 Consultant shall provide materials to PMT for review and comment at least 14 working days prior to the scheduled distribution of a deliverable to City, unless Agency Project Manager agrees to a different length of time. Consultant shall provide meeting materials to City Project Manager for photocopying and distribution, and to Agency Contract Administrator, at least seven calendar days prior to the relevant meeting date unless agreed to differently by PMT. This statement of work describes the responsibilities of all entities involved in this cooperative project. The work order contract(for the purposes of the quoted language below the "WOC")with the work order consultant ("Consultant") shall contain the following provisions in substantially the form set forth below: "Project Cooperation This statement of work describes the responsibilities of the entities involved in this cooperative Project. In this WOC,the Consultant shall only be responsible for those deliverables assigned to the Consultant. All work assigned to other entities are not Consultant's obligations under this WOC, but shall be obtained by Agency through separate intergovernmental agreements which contain a statement of work that is the same as or similar to this statement of work. The obligations of entities in this statement of work other than the Consultant are merely stated for informational purposes and are in no way binding, nor are the named entities parties to this WOC. Any tasks or deliverables assigned to a subcontractor shall be construed as being the responsibility of the Consultant. Any Consultant tasks or deliverables which are contingent upon receiving information, resources, assistance, or cooperation in any way from another entity as described in this statement of work shall be subject to the following guidelines: 1. At the first sign of non-cooperation,the Consultant shall provide written notice(email acceptable)to Oregon Department of Transportation(Agency) Project Manager of any deliverables that may be delayed due to lack of cooperation by other entities referenced in this statement of work. 2. Agency Project Manager shall contact the non-cooperative entity or entities to discuss the matter and attempt to correct the problem and expedite items determined to be delaying the Consultant. If Consultant has followed the notification process described in item 1, and Agency finds that delinquency of any deliverable is a result of the failure of other referenced entities to provide information,resources, assistance, or cooperation,as described in this statement of work,the Consultant will not be found in breach of contract; nor shall Consultant be assessed or liable for any damages arising as a result of such delinquencies. Neither shall ODOT be responsible or liable for any damages to Consultant as the result of such non- cooperation by other entities. Agency Project Manager will negotiate with Consultant in the best interest of the State, and may amend the delivery schedule to allow for delinquencies beyond the control of the Consultant." Consultant shall ensure that any work products produced pursuant to this WOC include the following statement: This project is partially funded by a grant from the Transportation and Growth Management(TGM) Program, a joint program of the Oregon Department of Transportation and the Oregon Department of Land Conservation and Development. This TGM grant is financed, in part, by federal Safe,Accountable, Flexible, Efficient Transportation Equity Act:A Legacy for Users (SAFETEA-LU), local government, and the State of Oregon funds. 13 - TGM Grant Agreement No.28905 TGM-File Code C 1 B 1-12 EA#TG 12GF32 The contents of this document do not necessarily reflect views or policies of the State of Oregon. Key Personnel Consultant acknowledges and agrees that Agency selected Consultant,and is entering into this WOC,because of the special qualifications of Consultant's key people. In particular,Agency through this WOC is engaging the expertise,experience,judgment, and personal attention of Scot Siegel("Key Personnel"). Consultant's Key Personnel shall not delegate performance of the management powers and responsibilities. Key Personnel is required to provide under this WOC to another(other)Consultant employee(s)without first obtaining the written consent of Agency. Further,Consultant shall not re-assign or transfer the Key Personnel to other duties or positions such that the Key Personnel is no longer available to provide Agency with Key Personnel's expertise, experience,judgment, and. personal attentions, without first obtaining Agency's prior written consent to such re-assignment or transfer. In the event Consultant requests that Agency approve a re-assignment or transfer of the Key Personnel,Agency shall have the right to interview,review the qualifications of,and approve or disapprove the proposed replacement(s) for the Key Personnel. Any approved substitute or replacement for Key Personnel shall be deemed Key Personnel under this WOC. Public Involvement Approach Public involvement must allow residents and business owners an opportunity to provide input into the planning process.Consultant and City shall consider environmental justice issues,which is the fair treatment and meaningful involvement of all people regardless of race, color,national origin,or income with respect to the development,implementation, and enforcement of environmental laws, regulations,and policies. Fair treatment means that no group of people, including a racial,ethnic,or a socioeconomic group,should bear a disproportionate share of the negative environmental consequences resulting from industrial, municipal, and commercial operations or the execution of federal, state, local,and tribal programs and policies.Meaningful involvement means that: (1)potentially affected community residents have an appropriate opportunity to participate in decisions about a proposed activity that will affect their environment and/or health;(2)the public's contribution can influence the regulatory agency's decision; (3)the concerns of all participants involved will be considered in the decision making process;and(4)the decision makers seek out and facilitate the involvement of those potentially affected. The public involvement program must include specific steps to provide opportunities for participation by federal Title VI communities. City shall utilize the ODOT Title VI (1964 Civil Rights Act)Plan guidance to identify Title VI populations, formulate public involvement strategies,and report outreach efforts to and participation by Title VI communities. D.WORK TASKS AND DELIVERABLES Task 1: Draft 92 Code Amendments and Graphics The purpose of Task I is to prepare Development Code Draft#2 for Planning Commission review. Phase 1 funded by the City included the development of an initial Development Code Draft. Draft Amendments in this draft were divided into three modules. Module I of Draft,#2 was completed in Phase 1. 1.1 Consultant shall convene PMT Meeting#1 via teleconference. PMT will review work previously completed in Phase 1 of the project, including Development Code Module I Draft#2. PMT will review upcoming tasks. Consultant shall prepare and distribute Notes summarizing PMT Meeting#I. - 14 - TGM Grant Agreement No.28905 TGM File Code C1B1-12 EA#TG12GF32 1.2 Consultant shall produce Development Code Module 2 Draft#2 using the results of Phase 1. Consultant shall prepare a cover memo summarizing the module, comparing existing code requirements to proposed changes and highlighting key policy issues. Consultant shall meet with City by telephone to prepare for Planning Commission review. City shall present Development Code Module 2 Draft#2 to Planning Commission for review. 1.3 Consultant shall produce Development Code Module 3 Draft 42 using the results of Phase 1. Consultant shall prepare a cover memo summarizing the module,comparing existing code requirements to proposed changes and highlighting key policy issues. Consultant shall meet with City by telephone to prepare for Planning Commission review. City shall present Development Code Module 3 Draft#2 to Planning Commission for review. 1.4 Consultant shall review all definitions in the existing development code and Development Code Modules 1,2, and 3 Draft#2 to prepare Development Code Definitions. 1.5 Consultant shall use work developed in Phase 1 and Development Code Modules I,2, and 3 Draft 92 to prepare Draft Code Graphics Package. Draft Code Graphics Package must include no fewer than 24 code graphics to be incorporated in an updated development code; code graphics must be a combination of Model Code graphics and up to 12 new graphics developed specifically for the City of Ashland in a consistent format with the Model Code graphics. Draft Code Graphics Package must be prepared to allow easy insertion into an update development code. Consultant shall distribute Draft Code Graphics Package to PMT for review and comment. 1.6 Consultant shall use comments received from PMT to revise Draft Code Graphics Package to prepare Code Graphics Package. Task 1 Consultant Deliverables: 1.1 PMT Meeting#1 1.2 Development Code Module 2 Draft 92 1.3 Development Code Module 3 Draft#2 1.4 Development Code Definitions 1.5 Draft Code Graphics Package 1.6 Code Graphics Package Task 1 City Deliverables: 1.1 PMT Meeting#1 1.2 Present Development Code Module 2 Draft#2 to Planning Commission 1.3 Present Development Code Module 3 Draft#2 to Planning Commission 1.5 Review Draft Code Graphics Package Task 2: Procedures and Green Building Code Evaluation The purpose of Task 2 is to evaluate existing code provisions for consistency with City Council Goals related to Economic Development and Sustainability(Green Building)best practices,to review code amendment options with local officials,and to prepare a detailed outline and action plan for preparing related code amendments. 2.1 Consultant shall convene PMT Meeting#2 via teleconference. PMT will review Development Code Draft #2 Modules 1,2, and 3; Development Code Definitions;and Code Graphics Package. PMT will review upcoming tasks. Consultant shall prepare and distribute Notes summarizing PMT Meeting#2. 15 - TGM Grant Agreement No.28905 TGM File Code Cl B1-12 EA#TG12GF32 2.2 Consultant shall prepare Draft Procedures Evaluation Memo evaluating Ashland's current land use procedures and recommending updates for consistency with Council Goals related to economic development. Consultant shall include sample implementing code text that would be required in an updated development code. Draft Procedures Evaluation Memo must be in summary form and not exceed 8 pages of text,excluding sample code text. Consultant shall distribute Draft Procedures Evaluation Memo to PMT for written comment. 2.3 Consultant shall prepare Draft Green Building Evaluation Memo evaluating Ashland's current Site Design and Use Standards and recommending updates for consistency with sustainability (green building) best practices. Draft Green Building Evaluation Memo must include sample implementing code text that would be required in an updated development code. Draft Green Building Evaluation Memo must be in summary form and not exceed 8 pages of text, excluding sample code text. Consultant shall distribute Draft Green Building Evaluation Memo to PMT for written comment. 2.4 Consultant shall convene PMT Meeting 43 via teleconference. PMT will review Draft Procedures Evaluation Memo and Draft Green Building Evaluation Memo. PMT will review upcoming tasks. Consultant shall prepare and distribute Notes summarizing PMT Meeting 0. 2.5 Consultant shall use feedback received from PMT to revise Draft Procedures Evaluation Memo to produce Evaluation Procedures Memo. Consultant shall meet with City by telephone to prepare for Planning Commission review.City shall present Procedures Evaluation Memo to Planning Commission for review.City shall summarize Planning Commission feedback and distribute to PMT. 2.6 Consultant shall use feedback received from PMT to revise Draft Green Building Evaluation Memo to produce Green Building Evaluation Memo. Consultant shall meet with City by telephone to prepare for Planning Commission review.City shall present Green Building Evaluation Memo to Planning Commission for review.City shall summarize Planning Commission feedback and distribute to PMT. 2.7 Consultant shall use Procedures Evaluation Memo,Green Building Evaluation Memo,and input received from Planning Commission to prepare Evaluation Action Plan including revised evaluation memos and an outline and action plan for related code amendments.Consultant shall include sample implementing code text that would be required in an updated development code. Consultant shall distribute Evaluation Action Plan to PMT for review. Task 2 Consultant Deliverables: 2.1 PMT Meeting#2 2.2 Draft Procedures Evaluation Memo 2.3 Draft Green Building Evaluation Memo 2.4 PMT Meeting#3 2.5 Evaluation Procedures Memo 2.6 Green Building Evaluation Memo 2.7 Evaluation Action Plan Task 2 City Deliverables: 2.1 PMT Meeting#2 2.2 Comment on Draft Procedures Evaluation Memo 2.3 Comment on Draft Green Building Evaluation Memo 2.4 . PMT Meeting#3 2.5 Present Evaluation Procedures Memo to Planning Commission 2.6 Present Green Building Evaluation Memo to Planning Commission 2.7 Review Evaluation Action Plan -16 - TGM Grant Agreement No.28905 TGM File Code CIBI-12 EA#TG12GF32 Task 3: Development Code Draft#3 and Adoption The purpose of Task 3 is to prepare a final draft of the Development Code consolidating all of the previous work including Development Code Modules 1,2,and 3 Draft#2, Development Code Definitions,Code Graphics Package,and Evaluation Action Plan. Draft#3 must incorporate City comments from previous tasks,and must be suitable for public hearings(adoption-ready). 3.1 City shall use Development Code Modules I,2,and 3 Draft#2, Development Code Definitions,Code Graphics Package,and Evaluation Action Plan to prepare City Comments containing one set of consolidated and reconciled comments and direction to Consultant to use in the development of Development Code Draft#3.City shall distribute City Comments to PMT. 3.2 Consultant shall convene PMT Meeting 44 via teleconference. PMT will review work previously completed in Task 2,City Comments, and review upcoming tasks. Consultant shall prepare and distribute Notes summarizing PMT Meeting#4. 3.3 Consultant shall use City Comments and direction from PMT Meeting#4 to prepare Development Code Draft#3. Development Code Draft 43 must incorporate Development Code Modules 1,2,and 3 Draft#2, Development Code Definitions,Code Graphics Package,and Evaluation Action Plan. 3.4 City shall prepare for Adoption, including finalizing code amendments,legislative findings, legal review, final formatting,publication,preparation of ordinance for adoption,and public notices and hearings. Consultant shall meet with City by telephone to prepare for the first Planning Commission hearing on the Development Code. Consultant shall assist City by preparing sample findings,with a cover memorandum not to exceed 2 pages. Task 3 Consultant Deliverables: 3.2 PMT Meeting#4 3.3 Development Code Draft#3 3.4 Adoption Findings and Assistance Task 3 City Deliverables: 3.1 City Comments 3.2 PMT Meeting#4 3.4 Adoption 17 - TGM Grant Agreement No.28905 TGM File Code C 1 B 1-12 EA#TG 12GF32 E. LUMP SUM PER DELIVERABLE AND PROJECT SCHEDULE LUMP SUM PER TASK CONSULTANT DELIVERABLES DELIVERABLE COMPLETION AMOUNT Task 1: Draft#2 Code Amendments and Graphics 1.1 PMT Meeting#1 $500 September 2012 1.2 Development Code Module 2 Draft#2 $6,500 October 1.3 Development Code Module 3 Draft#2 $6,500 November 1.4 Development Code Definitions $5,300 November 1.5 Draft Code Graphics Package $6,200 November 1.6 Code Graphics Package $2,000 December Task 2: Procedures and Green Building Code Evaluation 2.1 PMT Meeting#2 $500 December 2.2 Draft Procedures Evaluation Memo $2,500 December 2.3 Draft Green Building Evaluation Memo $2,700 December 2.4 PMT Meeting#3 $500 January 2013 2.5 Procedures Evaluation Memo $900 February 2.6 Green Building Evaluation Memo $900 March 2.7 Evaluation Action Plan $1,600 April Task 3: Development Code Draft#3 and Adoption 3.2 PMT Meeting 44 $500 April 3.3 Development Code Draft#3 $8,500 May 3.4 Adoption Findings&Assistance $900 June PROJECT TOTAL $46,500 _ ]g _ TGM Grant Agreement No.28905 TGM File Code CIB1-12 EA#TG12GF32 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 consultant)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 consultant),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. AGENCY OFFICIAL CERTIFICATION(ODOT) 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 1. 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: 1. Are not presently debarred,suspended,proposed contract under a public transaction;violation of for debarment,declared ineligible or voluntarily federal or state antitrust statutes or commission of excluded from covered transactions by any embezzlement,theft,forgery,bribery falsification Federal department or agency; or destruction of records,making false statements or receiving stolen property; 2. Have not within a three-year period preceding this proposal been convicted of or had a civil 3. Are not presently indicted for or otherwise judgment rendered against them for commission criminally or civilly charged by a governmental of fraud or a criminal offense in connection with entity(federal,state or local)with commission of obtaining,attempting to obtain or performing a any of the offenses enumerated in paragraph public(federal,state or local)transaction or (1)(b)of this certification;and - 19 - TGM Grant Agreement No.28905 TGM File Code C 1 B I-12 EA#TG 12GF32 4. Have not within a three-year period preceding this 4. The Contractor shall provide immediate written application/proposal had one or more public notice to the Department to whom this proposal transactions(federal,state or local)terminated for is submitted if at any time the Contractor learns cause or default. that its certification was erroneous when submitted or has become erroneous by reason of Where the Contractor is unable to certify to any of the changed circumstances. statements in this certification,such prospective participant shall attach an explanation to this proposal. 5. The terms"covered transaction","debarred", "suspended", "ineligible","lower tier covered List exceptions. For each exception noted,indicate to transact ion","participant","person", "primary whom the exception applies, initiating agency,and dates covered transaction", "principal",and of action. If additional space is required,attach another "voluntarily excluded",as used in this clause, page with the following heading: Certification have the meanings set out in the Definitions and Exceptions continued,Contract Insert. Coverage sections of the rules implementing Executive Order 12549. You may contact the EXCEPTIONS: Department's Program Section(Tel.(503)986- 3400)to which this proposal is being submitted Exceptions will not necessarily result in denial of award, for assistance in obtaining a copy of those but will be considered in determining Contractor regulations. responsibility. Providing false information may result in criminal prosecution or administrative sanctions. 6. The Contractor agrees by submitting this proposal that,should the proposed covered The Contractor is advised that by signing this contract,the transaction be entered into,it shall not Contractor is deemed to have signed this certification. knowingly enter into any lower tier covered transactions with a person who is debarred, 11. INSTRUCTIONS FOR CERTIFICATION suspended,declared ineligible or voluntarily REGARDING DEBARMENT, SUSPENSION,AND excluded from participation in this covered OTHER RESPONSIBILITY MATTERS—PRIMARY transaction,unless authorized by the Department COVERED TRANSACTIONS or agency entering into this transaction. I. By signing this contract,the Contractor is 7. The Contractor further agrees by submitting this providing the certification set out below. proposal that it will include the Addendum to Form FHWA-1273 titled, "Appendix 2. The inability to provide the certification required B--Certification Regarding Debarment, below will not necessarily result in denial of Suspension,Ineligibility and Voluntary participation in this covered transaction. The Exclusion--Lower Tier Covered Transactions", Contractor shall explain why he or she cannot provided by the Department entering into this provide the certification set out below. This covered transaction without modification,in all explanation will be considered in connection lower tier covered transactions and in all with the Oregon Department of Transportation solicitations for lower tier covered transactions. determination to enter into this transaction. Failure to furnish an explanation shall disqualify 8. A participant in a covered transaction may rely such person from participation in this upon a certification of a prospective participant transaction. in a lower tier covered transaction that it is not debarred,suspended,ineligible or voluntarily 3. The certification in this clause is a material excluded from the covered transaction,unless it representation of fact upon which reliance was knows that the certification is erroneous. A placed when the Department determined to enter participant may decide the method and frequency into this transaction. If it is later determined that by which it determines the eligibility of its the Contractor knowingly rendered an erroneous principals. Each participant may,but is not certification,in addition to other remedies required to,check the Nonprocurement List available to the Federal Government or the published by the U.S.General Services Department may terminate this transaction for Administration. cause of default. 9. Nothing contained in the foregoing shall be construed to require establishment of a system of -20 - TGM Grant Agreement No.28905 TGM File Code CIB1-12 EA#TG 12GF32 records to render in good faith the certification transaction", "participant","person","primary required by this clause.The knowledge and covered transaction","principal", "proposal",and information of a participant is not required to "voluntarily excluded",as used in this clause, exceed that which is normally possessed by a have the meanings set out in the Definitions and prudent person in the ordinary course of business Coverage sections of rules implementing dealings. Executive Order 12549. You may contact the person to which this proposal is submitted for 10. Except for transactions authorized under assistance in obtaining a copy of those paragraph 6 of these instructions,if a participant regulations. in a covered transaction knowingly enters into a lower tier covered transaction with a person who 5. The prospective lower tier participant agrees by is suspended,debarred,ineligible or voluntarily submitting this contract that,should the proposed excluded from participation in this transaction,in covered transaction be entered into, it shall not addition to other remedies available to the knowingly enter into any lower tier covered - Federal Government or the Department,the transaction with a person who is debarred, Department may terminate this transaction for suspended,declared ineligible or voluntarily cause or default. excluded from participation in this covered transaction,unless authorized by the department 111. ADDENDUM TO FORM FHWA-1273, or agency with which this transaction originated. REQUIRED CONTRACT PROVISIONS 6. The prospective lower tier participant further This certification applies to subcontractors,material agrees by submitting this contract that it will suppliers,vendors,and other lower tier participants. include this clause titled,"Certification Regarding Debarment,Suspension,Ineligibility • Appendix B of 49 CFR Part 29- and Voluntary Exclusion--Lower Tier Covered Transaction",without modification,in all lower Appendix B--Certification Regarding Debarment, tier covered transactions and in all solicitations Suspension,Ineligibility,and Voluntary for lower tier covered transactions. Exclusion--Lower Tier Covered Transactions 7. A participant in a covered transaction may rely Instructions for Certification upon a certification of a prospective participant in a lower tier covered transaction that it is not I. By signing and submitting this contract,the debarred,suspended,ineligible or voluntarily prospective lower tier participant is providing the excluded from the covered transaction,unless certification set out below. it knows that the certification is erroneous. A participant may decide the method and frequency 2. The certification in this clause is a material by which it determines the eligibility of its representation of fact upon which reliance was principals. Each participant may,but is not placed when this transaction was entered into. If required to,check the nonprocurement list. it is later determined that the prospective lower tier participant knowingly rendered an erroneous 8. Nothing contained in the foregoing shall be certification,in addition to other remedies construed to require establishment of a system of available to the Federal Government,the records to render in good faith the certification department or agency with which this transaction required by this clause.The knowledge and originated may pursue available remedies, information of a participant is not required to including suspension and/or debarment. exceed that which is normally possessed by a prudent person in the ordinary course of business 3. The prospective lower tier participant shall dealings. provide immediate written notice to the person to which this contract is submitted if at any time the 9. Except for transactions authorized under prospective lower tier participant leams that its paragraph 5 of these instructions,if a participant certification was erroneous when submitted or in a covered transaction knowingly enters into a has become erroneous by reason of changed lower tier covered transaction with a person who circumstances. is suspended,debarred,ineligible or voluntarily 4. The terms"covered transaction", "debarred", excluded from participation in this transaction, "suspended","ineligible","lower tier covered in addition to other remedies available to the - 21 - TGM Grant Agreement No.28905 TGM File Code C I B 1-12 EA#TG 12GF32 Federal Government,the department or agency performance of such consulting services on work with which this transaction originated may similar to that hereunder. Department shall be pursue available remedies,including suspension entitled to rely on the accuracy,competence,and and/or debarment. completeness of Contractor's services. Certification Regarding Debarment,Suspension, V. NONDISCRIMINATION Ineligibility,and Voluntary Exclusion--Lower Tier Covered Transactions During the performance of this contract,Contractor, for himself,his assignees and successors in interest, a. The prospective lower tier participant hereinafter referred to as Contractor,agrees as certifies,by submission of this proposal,that follows: neither it nor its principals is presently debarred,suspended,proposed for 1. Compliance with Regulations. Contractor agrees debarment,declared ineligible or voluntarily to comply with Title VI of the Civil Rights Act excluded from participation in this of 1964,and Section 162(a)of the Federal-Aid transaction by any Federal department or Highway Act of 1973 and the Civil Rights agency. Restoration Act of 1987.Contractor shall comply with the regulations of the Department b. Where the prospective lower tier participant of Transportation relative to nondiscrimination is unable to certify to any of the statements in Federally assisted programs of the Department in this certification,such prospective of Transportation,Title 49,Code of Federal participant shall attach an explanation to this Regulations,Part 21,as they may be amended proposal. from time to time(hereinafter referred to as the Regulations),which are incorporated by IV. EMPLOYMENT reference and made a part of this contract. Contractor,with regard to the work performed I. Contractor warrants that he has not employed or after award and prior to completion of the retained any company or person,other than a contract work,shall not discriminate on grounds bona fide employee working solely for of race,creed,color,sex or national origin in the Contractor,to solicit or secure this contract and selection and retention of subcontractors, that he has not paid or agreed to pay any including procurement of materials and leases of company or person,other than a bona fide equipment. Contractor shall not participate employee working solely for Contractors,any either directly or indirectly in the discrimination fee,commission,percentage,brokerage fee,gifts prohibited by Section 21.5 of the Regulations, or any other consideration contingent upon or including employment practices,when the resulting from the award or making of this contract covers a program set forth in contract. For breach or violation of this Appendix B of the Regulations. warranting,Department shall have the right to annul this contract without liability or in its 2. Solicitation for Subcontractors,including discretion to deduct from the contract price or Procurement of Materials and Equipment. In all consideration or otherwise recover,the full solicitations,either by competitive bidding or amount of such fee,commission,percentage, negotiations made by Contractor for work to be brokerage fee,gift or contingent fee. performed under a subcontract, including procurement of materials and equipment,each 2. Contractor shall not engage,on a full or part-time potential subcontractor or supplier shall be basis or other basis,during the period of the notified by Contractor of Contractor's obligations contract,any professional or technical personnel under this contract and regulations relative to who are or have been at any time during the nondiscrimination on the grounds of race,creed, period of this contract,in the employ of color,sex or national origin. Department,except regularly retired employees, without written consent of the public employer 3. Nondiscrimination in Employment(Title VII of of such person. the 1964 Civil Rights Act). During the performance of this contract,Contractor agrees 3. Contractor agrees to perform consulting services as follows: with that standard of care,skill and diligence normally provided by a professional in the 22 TGM Grant Agreement No.28905 TGM File Code CIB1-12 EA#TG I2GF32 a. Contractor will not discriminate against any equipment,unless exempt from Regulations, employee or applicant for employment orders or instructions issued pursuant thereto. because of race,creed,color,sex or national Contractor shall take such action with respect to origin.Contractor will take affirmative any subcontractor or procurement as Department action to ensure that applicants are or FH WA may direct as a means of enforcing employed,and that employees are treated such provisions,including sanctions for during employment,without regard to their noncompliance;provided,however,that in the race,creed,color,sex or national origin. event Contractor becomes involved in or is Such action shall include,but not be limited threatened with litigation with a subcontractor or to the following:employment,upgrading, supplier as a result of such direction,Department demotion or transfer;recruitment or may,at its option,enter into such litigation to recruitment advertising;layoff or protect the interests of Department,and,in termination;rates of pay or other forms of addition,Contractor may request Department to compensation;and selection for training, enter into such litigation to protect the interests including apprenticeship. Contractor agrees of the State of Oregon. to post in conspicuous places,available to employees and applicants for employment, VI. DISADVANTAGED BUSINESS ENTERPRISE notice setting forth the provisions of this (DBE)POLICY nondiscrimination clause. In accordance with Title 49,Code of Federal b. Contractor will,in all solicitations or Regulations,Part 26,Contractor shall agree to abide advertisements for employees placed by or by and take all necessary and reasonable steps to on behalf of Contractor,state that all comply with the following statement: qualified applicants will receive consideration for employment without DBE POLICY STATEMENT regard to race,creed,color,sex or national origin. DBE Policy. It is the policy of the United States Department of Transportation(USDOT) to practice 4. Information and Reports. Contractor will nondiscrimination on the basis of race,color,sex provide all information and reports required by and/or national origin in the award and the Regulations or orders and instructions issued administration of USDOT assist contracts. pursuant thereto,and will permit access to his Consequently,the DBE requirements of 49 CFR 26 books,records,accounts,other sources of apply to this contract. information,and his facilities as may be determined by Department or FH WA as Required Statement For USDOT Financial appropriate,and shall set forth what efforts he Assistance Agreement.If as a condition of has made to obtain the information. assistance the Agency has submitted and the US Department of Transportation has approved a 5. Sanctions for Noncompliance. In the event of Disadvantaged Business Enterprise Affirmative Contractor's noncompliance with the Action Program which the Agency agrees to cant' nondiscrimination provisions of the contract, out,this affirmative action program is incorporated Department shall impose such agreement into the financial assistance agreement by reference. sanctions as it or the FH WA may determine to be appropriate,including,but not limited to: DBE Obligations. The Oregon Department of Transportation(ODOT)and its contractor agree to a. Withholding of payments to Contractor under ensure that Disadvantaged Business Enterprises as the agreement until Contractor complies; defined in 49 CFR 26 have the opportunity to and/or participate in the performance of contracts and subcontracts financed in whole or in part with b. Cancellation,termination or suspension of the Federal funds. In this regard,Contractor shall take agreement in whole or in part. all necessary and reasonable steps in accordance with 49 CFR 26 to ensure that Disadvantaged 6. Incorporation of Provisions. Contractor will Business Enterprises have the opportunity to include the provisions of paragraphs I through 6 compete for and perform contracts. Neither ODOT of this section in every subcontract,including nor its contractors shall discriminate on the basis of procurement of materials and leases of race,color,national origin or sex in the award and - 23 - TOM Grant Agreement No.28905 TGM File Code C1B1-12 EA#TG 12GF32 performance of federally-assisted contracts. The VII.LOBBYING contractor shall carry out applicable requirements of 49 CFR Part 26 in the award and administration of The Contractor certifies,by signing this agreement such contracts. Failure by the contractor to carry out to the best of his or her knowledge and belief,that: these requirements is a material breach of this contract,which may result in the termination of this I. No Federal appropriated funds have been paid or contract or such other remedy as ODOT deems will be paid,by or on behalf of the undersigned, appropriate. to any person for influencing or attempting to influence an officer or employee of any Federal The DBE Policy Statement and Obligations shall be agency,a Member of Congress,an officer or included in all subcontracts entered into under this employee of Congress or an employee of a contract. Member of Congress in connection with the awarding of any Federal contract,the making of Records and Reports. Contractor shall provide any Federal grant,the making of any Federal monthly documentation to Department that it is loan,the entering into of any cooperative subcontracting with or purchasing materials from agreement,and the extension,continuation, the DBEs identified to meet contract goals. renewal,amendment or modification of any Contractor shall notify Department and obtain its Federal contract,grant,loan or cooperative written approval before replacing a DBE or making agreement. any change in the DBE participation listed. If a DBE is unable to fulfill the original obligation to the 2. If any funds other than Federal appropriated contract,Contractor must demonstrate to funds have been paid or will be paid to any Department the Affirmative Action steps taken to person for influencing or attempting to influence replace the DBE with another DBE.Failure to do so an officer or employee of any Federal agency,a will result in withholding payment on those items. Member of Congress,an officer or employee of The monthly documentation will not be required Congress or an employee of a Member of after the DBE goal commitment is satisfactory to Congress in connection with this agreement,the Department. undersigned shall complete and submit Standard Form-LLL,"Disclosure Form to Report Any DBE participation attained after the DBE goal Lobbying",in accordance with its instructions. has been satisfied should be reported to the Departments. This certification is a material representation of fact upon which reliance was placed when this DBE Definition. Only firms DBE certified transaction was made or entered into. Submission of by the State of Oregon, Department of Consumer this certification is a prerequisite for making or •Business Services,Office of Minority,Women entering into this transaction imposed by Section •Emerging Small Business,may be utilized to 1352,Title 317 U.S.Code. Any person who fails to satisfy this obligation. file the required certification shall be subject to a civil penalty of not less than$10,000 and not more CONTRACTOR'S DBE CONTRACT GOAL than$100,000 for each such failure. DBE GOAL 0 % The Contractor also agrees by signing this agreement that he or she shall require that the language of this By signing this contract,Contractor assures that certification be included in all lower tier good faith efforts have been made to meet the goal subagreements,which exceed$100,000 and that al I for the DBE participation specified in the Request such subrecipients shall certify and disclose for Proposal/Qualification for this project as accordingly. required by ORS 200.045,and 49 CFR 26.53 and 49 CFR, Part 26,Appendix A. FOR INQUIRY CONCERNING ODOT'S DBE PROGRAM REQUIREMENT CONTACT OFFICE OF CIVIL RIGHTS AT (503)986-4354. - 24 -