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HomeMy WebLinkAbout2008-254 Agrmt CMAQ Program Misc. Contracts & Agreements No. 25026 LOCAL AGENCY AGREEMENT CONGESTION MITIGATION AND AIR QUALITY PROGRAM Plaza Avenue: Nezla Avenue to Verda Street City of Ashland THIS AGREEMENT is made and entered into by and between the STATE OF OREGON, acting by and through its Department of Transportation, hereinafter referred to as "State"; and the CITY OF ASHLAND, acting by and through its elected officials, hereinafter referred to as "Agency." RECIT ALS 1. Plaza Avenue is a part of the city street system under the jurisdiction and control of Agency. 2. By the authority granted in Oregon Revised Statutes (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. 3. Plaza Avenue, from Nezla Avenue to Verda Street, is currently surfaced with gravel. The dust from the gravel surface contributes to the PM-10 levels in the air shed. Plaza Avenue is also the sole unpaved street in the area and as such, shoulders additional runoff and drainage from upstream paved streets. To reduce dusting and track-out, this block of Plaza Avenue will be paved, sidewalk will be installed, curb and gutters will be installed, and drainage will be installed as necessary. NOW THEREFORE, the premises being in general as stated in the foregoing RECITALS, it is agreed by and between the parties hereto as follows: TERMS OF AGREEMENT 1. Under such authority, Agency agrees to pave Plaza Avenue from Nezla Avenue to Verda Street, install curbs and gutters on both sides, install a sidewalk on the east side of Plaza Avenue, and install drainage as necessary, hereinafter "Project". The location of the Project is approximately as shown on the sketch map attached hereto, marked "Exhibit A," and by this reference made a part hereof. 2. This Project shall be conducted as a part of the Congestion Mitigation and Air Quality (CMAQ) Program under Title 23, United States Code. The total Project cost is estimated at $888,220, which is subject to change. The CMAQ funds are limited to $797,700. Eligible costs for the Project will be reimbursed at the full federal share Key No. 15694 II Agency/State Agreement No. 25026 or until the $797,700 limit is reached. Agency shall be responsible for the 10.270/0 match for the federal funds and any portion of the Project which is not covered by federal funding. Agency shall determine the amount of federal funds to be applied to each phase of the Project. Agency is not guaranteed the use of unspent funds for a particular phase of work. It is Agency's responsibility to notify State in advance of obligating funds for a subsequent phase if Agency wants to release funds on the current authorized phase(s) of work. 3. The federal funding for this Project is contingent upon approval by the Federal Highway Administration (FHW A). Any work performed prior to acceptance by FHW A will be considered nonparticipating and paid for at Agency expense. The Catalog of Federal Domestic Assistance (CFDA), Highway Planning and Construction, number for this Project is 20.205. 4. State considers Agency a sub-recipient of the federal funds under this Agreement. 5. At the beg'inning of each Federal Year, Agency shall complete and provide State a CMAQ reporting form (an example of which is attached hereto as Exhibit B and by this reference made a part hereof). 6. Under such authority, Agency may, if needed, retain the services of State to perform specific right of way services further identified in Attachment No. 1 A of the Special Provisions, attached hereto and by this reference made a part hereof. 7. Agency, or its consultant, shall perform specific right of way services further identified in Attachment No. 1A of the Special Provisions, attached hereto and by this reference made a part hereof. Agency, or its consultant, shall be reimbursed for such services as a Project expense. 8. It is further agreed all parties will strictly follow the rules, policies and procedures of the "Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970" as amended, ORS Chapter 35, State of Oregon Right of Way Manual, and Federal Highway Administration Federal Aid Policy Guide. 9. 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. 10. This Agreement may be terminated by mutual written consent of both parties. 2 II Agency/State Agreement No. 25026 11. 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. 12. Any termination of this Agreement shall not prejudice any rights or obligations accrued to the parties prior to termination. 13. 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. 14.Agency, as a recipient of federal funds, pursuant to this Agreement with the State, shall assume sole liability for Agency's breach of any federal statutes, rules, program requirements and grant provisions applicable to the federal funds, and shall, upon Agency's breach of any such conditions that requires the State to return funds to the Federal Highway Administration, hold harmless and indemnify the State for an amount equal to the funds received under this Agreement; or if legal limitations apply to the indemnification ability of Agency, the indemnification amount shall be the maximum amount of funds available for expenditure, including any available 3 Agency/State Agreement No. 25026 contingency funds or other available non-appropriated funds, up to the amount received under this Agreement. 15.Agency shall enter into and execute this Agreement during a duly authorized session of its City Council. 16. 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. 17. This Agreement and attached exhibits constitute the entire agreement between the parties on the subject matter hereof. There are no understandings, agreements, or representations, oral or written, not specified herein regarding this Agreement. No waiver, consent, modification or change of terms of this Agreement shall bind either party unless in writing and signed by both parties and all necessary approvals have been obtained. Such waiver, consent, modification or change, if made, shall be effective only in the specific instance and for the specific purpose given. The failure of State to enforce any provision of this Agreement shall not constitute a waiver by State of that or any other provision. IN WITNESS WHEREOF, the parties hereto have set their hands as of the day and year hereinafter written. This Project is in the 2008-2011 Statewide Transportation Improvement Program, (Key #15694) that was approved by the Oregon Transportation Commission on November 14,2007 (or subsequently approved by amendment to the STIP). The Oregon Transportation Commission on June 18, 2003, approved Delegation Order No.2, which authorizes the Director to approve and execute agreements for day-to-day operations. Day-to-day operations include those activities required to implement the biennial budget approved by the Legislature, including activities to execute a project in the Statewide Transportation Improvement Program. On September 15, 2006, the Director of the Oregon Department of Transportation approved Subdelegation Order No.2, Paragraph 1, in which authority is delegated to the Deputy Director, Highways; Deputy Director, Central Services and the Chief of Staff, to approve and sign agreements over $75,000 when the work is related to a project included in the Statewide Transportation Improvement Program or in other system plans approved by the Oregon Transportation Commission such as the Oregon Traffic Safety Performance Plan, or in a line item in the biennial budget approved by the Director. The Director may also delegate to other Administrators the authority to execute 4 Agency/State Agreement No. 25026 intergovernmental agreements over $75,000 for specific programs such as transportation safety, growth management and public transit. By ~ By Title Date APPROVED AS TO LEGAL SUFFICIENCY ~it!l~r~\~ - Date \D -- \ -Of" Agency Contact: City of Ashland Attn: Jim Olson 51 Winburn Way Ashland, OR 97520 (541 ) 488-5347 ODOT Contact: STATE OF OREGON, by and through its Department of Transportation ~~PUty~ Date ~ AP~VAL RECOMMENDED BfA IYlf/llL Technical Services Manager/Chief Engineer D~t //-/9..t!}Y B ~. Region Manager Date . If) /1.-,} / otv By Region 3 Local Pro am Project Manager ID/20/08 AS TO LE~AT SUFFICIENCY By 'rf f( ~~ Assistant Attorney General 1(llv/~tt Date Date: 5 Misc. Contracts & Agreements No. 25026 ATTACHMENT NO.1 to Agreement No. 25026 SPECIAL PROVISIONS 1. Agency or its consultant shall, as a federal-aid participating preliminary engineering function, conduct the necessary field surveys, environmental studies, traffic investigations, foundation explorations, and hydraulic studies, identify and obtain all required permits, assist State with acquisition of necessary right of way and/or easements, and perform all preliminary engineering and design work required to produce final plans, preliminary/final specifications and cost estimates. 2. Upon State's award of the construction contract, Agency, or its consultant, shall be responsible to perform all construction engineering, field testing of materials, technical inspection and project manager services for administration of the contract. 3. In the event that Agency elects to engage the services of a personal services consultant to perform any work covered under this Agreement, Agency and Consultant shall enter into a Personal Services Contract approved by State's Office of Procurement Manager or designee (Salem). Said contract must be reviewed and approved by the Office of Procurement Manager or designee prior to beginning any work. This review includes, but is not limited to the Request for Proposal, Statement of Work, advertisement and all contract documents. This review and approval is required to ensure federal reimbursement. 4. State may make available Region 3's On-Call Preliminary Engineering (PE), Design and Construction Engineering Services consultant for Local Agency Projects upon written request. If Agency chooses to use said services, Agency agrees to manage the work performed by the consultant and make funds available to the State for payment of those services. All eligible work shall be a federally participating cost and included as part of the total cost of the Project. 5. Agency shall, at its own expense, maintain and operate the Project upon completion at a minimum level that is consistent with normal depreciation and/or service demand. 6. Maintenance responsibilities shall survive any termination of this Agreement. I Agency/State Agreement No. 25026 ATTACHMENT NO. 1A to Agreement No. 25026 SPECIAL PROVISIONS RIGHT OF WAY SERVICES AGREEMENT ITEMS TO BE COMPLETED BY STATE OR AGENCY All references to State may include State or its consultant. All references to Agency may include Agency or its consultant. A. Preliminary Phase 1. Agency shall provide preliminary cost estimates. 2. Agency shall make preliminary contacts with property owners. 3. Agency shall help gather and provide field location and project data. B. Acquisition Phase 1. General: a. When doing the Acquisition work, Agency shall provide State with a status report of the project upon request. b. Title to properties acquired shall be in the name of the Agency. c. Prior to the initiation of acquisitions, Agency shall adopt a resolution of intention and determination of necessity in accord with ORS 35.610, authorizing acquisition and condemnation. If the State Department of Justice is to handle condemnation work, that information needs to be included in the resolution adopted by the Agency. Prior approval by Department of Justice is required. 2. Legal Descriptions: a. Agency shall provide sufficient horizontal control, recovery and retracement surveys, vesting deeds, maps and other data so that legal descriptions can be written. b. Agency shall provide construction plans and cross-section information for the project. c. Agency shall write legal descriptions and prepare right of way maps. d. Agency shall specify the degree of title to be acquired (e.g., fee, easement). 3. Real Property and Title Insurance: a. Agency shall provide preliminary title reports, if Agency determines they are needed, before negotiations for acquisition commence. Agency/State Agreement No. 25026 b. Agency shall determine sufficiency of title (taking subject to). c. Agency shall conduct Level 1 testing for presence of hazardous material, if needed. Agency will conduct reasonable testing up to Level 2, if required. d. Agency shall be responsible for any necessary remediation. 4. Appraisal: a. Agency shall conduct the valuation process of properties to be acquired. b. Agency shall recommend just compensation, based upon a review of valuation by qualified personnel. c. Property trades, construction obligations, and zoning or permit concessions are to be evaluated as part of the Just compensation offer. 5. Negotiations: a. Agency shall tender all monetary offers to land-owners in writing at the compensation shown in the appraisal review. Conveyances taken for more than the approved figure will be documented by an Administrative Justification for the increase in compensation. If State performs this function, it will provide the Agency with all pertinent letters, negotiation records and obligations incurred during the acquisition process. b. Agency and State shall jointly determine a date for certification of right of way. Agency agrees to file all Recommendations for Condemnation at least 70 days prior to that date if negotiations have not been successful on those properties. 6. Relocation: a. Agency will perform any relocation assistance, make replacement housing computations, and do all things necessary to relocate any displaced parties on the project. b. Agency will make all relocation and moving payments for the project. c. Agency will perform the relocation appeal process. C. Closing Phase 1. Agency shall close all transactions. This includes drawing deeds, releases and satisfactions necessary to clear title, obtaining signatures on release documents, and making all payments. Agency/State Agreement No. 25026 2. Agency shall record conveyance documents, upon acceptance. D. Property Management 1. Agency shall take possession of all the acquired properties. 2. Agency shall dispose of all improvements and excess land. E. Condemnation 1. Agency may offer mediation if parties have reached an impasse. 2. Agency shall perform all administrative functions in preparation of the condemnation process, such as preparing final offer and complaint letters. 3. Agency shall perform all legal work related to the condemnation process. 4. Agency shall perform all litigation work related to condemnation. EXHIBIT A (JI ,.,... ~ AGREEMENT NO. 25026 ~ .r. CITY OF ASHLAND VICINITY MAP :E <l \D N ..:: ,.,... 0 ti -- co =1 0 0 N "- Ul "- PNI<ER 1.0 ST. l +- "5 0 'l- CD 0 .. c CJl u N >. +- 'c '0 .; I u C 0 :c If) 0 /' 0 If) S /' If) +- 0 CD '0 L a. /' < I- < 0 I l- e 0 e /' (JI ,.,... ,.,... CD >- t ~ .r:. /' (JI c N CD If) l L CD If) :J /' I >. +- '0 CD +- 'E ~ I If) /' /' I ~ r W'f. I 8I.ACK CW( IlEU.IIlEW I I l I MClRIO\ LH. I i~ I I I I Project Location: City Of Ashland Section: PlazaAv: NezlaAvTo Verda St, Key Number: 15694 1:1200_AP - 001 Misc. Contracts & Agreements No. 25026 ATTACHMENT NO.2 STANDARD PROVISIONS JOINT OBLIGATIONS PROJECT ADMINISTRATION 1. State (ODOT) is acting to fulfill its responsibility to the Federal Highway Administration (FHW A) 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 further act for Agency in other matters pertaining to the Project. Agency 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 liaison person 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 FHW A or State acting on behalf of FHW A prior to advertisement for bid proposals, regardless of the source of funding for construction. PRELIMINARY & CONSTRUCTION ENGINEERING 3. State, Agency, or others may perform preliminary and construction engineering. If Agency or others perform the engineering, State will monitor the work for conformance with FHW A rules and regulations. In the event that Agency elects to engage the services of a personal services consultant to perform any work covered by this Agreement, Agency and Consultant shall enter into a State reviewed and approved personal services contract process and resulting contract document. State must concur in the contract prior to beginning any work. State's personal services contracting process and resulting contract document will follow Title 23 Code of Federal ReQulations (CFR) 172, Title 49 CFR 18, ORS 279A.055, the current State Administrative Rules and State Personal Services Contracting Procedures as approved by the FHW A. Such personal services contract(s) shall contain a description of the work to be performed, a project schedule, and the method of payment. Subcontracts shall contain all required provisions of Agency as outlined in the Agreement. No reimbursement shall be made using federal-aid funds for any costs incurred by Agency or its consultant prior to receiving authorization from State to proceed. Any amendments to such contract(s) also require State's approval. 4. On all construction projects where State is the signatory party to the contract, and where Agency is doing the construction engineering and project management, Agency, subject to any limitations imposed by state law and the Oregon Constitution, agrees to accept all responsibility, defend lawsuits, indemnify and hold State harmless, for all tort claims, contract claims, or any other lawsuit arising out of the contractor's work or Agency's supervision of the project. REQUIRED STATEMENT FOR UNITED STATES DEPARTMENT OF TRANSPORTATION (USDOT) FINANCIAL ASSISTANCE AGREEMENT 5. If as a condition of assistance, Agency has submitted and the United States Department of Transportation (USDOT) has approved a Disadvantaged Business Enterprise Affirmative Action Program which Agency agrees to carry out, this affirmative action program is incorporated into the financial assistance agreement by reference. That program shall be treated as a legal obligation and failure to carry out its terms shall be treated as a violation of the financial assistance agreement. Upon notification from USDOT to Agency of its failure to carry out the approved Agency/State Agreement No. 25026 program, USDOT shall impose such sanctions as noted in Title 49. CFR. Part 26, which sanctions may include termination of the agreement or other measures that may affect the ability of Agency to obtain future USDOT financial assistance. 6. Disadvantaged Business Enterprises (DBE) Obligations. State and its contractor agree to ensure that DBE as defined in Title 49. CFR. Part 26, have the opportunity to participate in the performance of contracts and subcontracts financed in whole or in part with federal funds. In this regard, Agency shall take all necessary and reasonable steps in accordance with Title 49. CFR. Part 26, to ensure that DBE have the opportunity to compete for and perform contracts. Neither State nor Agency and its contractors shall discriminate on the basis of race, color, national origin or sex in the award and performance of federally-assisted contracts. Agency shall carry out applicable requirements of Title 49. CFR. Part 26, in the award and administration of such contracts. Failure by Agency to carry out these requirements is a material breach of this Agreement, which may result in the termination of this contract or such other remedy as State deems appropriate. 7. The DBE Policy Statement and Obligations shall be included in all subcontracts entered into under this Agreement. 8. Agency agrees 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. 9. The parties hereto agree and understand that they will comply with all applicable federal, state, and local laws, regulations, executive orders and ordinances applicable to the work including, but not limited to, the provisions of ORS 279C.505. 279C.515. 279C.520. 279C.530 and 2798.270. incorporated herein bv reference and made a part hereof: Title 23 CFR Parts 1.11. 140. 710. and 771: Title 49 CFR Parts 18. 24 and 26: OMB CIRCULAR NO. A-87 and NO. A-133 Title 23. USC. Federal-Aid Hiohwav Act: Title 41. Chapter 1. USC 51-58. Anti-Kickback Act: Title 42 USC: Uniform Relocation Assistance and Real Property Acquisition Policv Act of 1970. as amended and provisions of Federal-Aid Policv Guide (FAPG). STATE OBLIGATIONS PROJECT FUNDING REQUEST 10. State shall submit a Project funding request to FHW A with a request for approval of federal-aid participation in all engineering, right-of-way acquisition, eligible utility relocations and/or construction work for the Project. No work shall proceed on any activity in which federal-aid participation is desired until such approval has been obtained. The program shall include services to be provided by State, Agency, or others. State shall notify Agency in writing when authorization to proceed has been received from FHW A. Major responsibility for the various phases of the Project will be as outlined in the Special Provisions. All work and records of such work shall be in conformance with FHW A rules and regulations. FINANCE 11. State shall, in the first instance, pay all reimbursable costs of the Project, submit all claims for federal-aid participation to FHW A in the normal manner and compile accurate cost accounting records. Agency may request a statement of costs to date at any time by submitting a written request. When the actual total cost of the Project has been computed, State shall furnish Agency with an itemized statement of final costs. Agency shall pay an amount which, when added to said advance deposit and federal reimbursement payment, will equal 100 percent of the final total actual cost. Any portion of deposits made in excess of the final total costs of Project, minus federal reimbursement, shall be released to Agency. The actual cost of services provided by Agency/State Agreement No. 25026 State will be charged to the Project expenditure account(s) and will be included in the total cost of the Project. PROJECT ACTIVITIES 12. State shall, if the preliminary engineering work is performed by Agency or others, review and process or approve all environmental statements, preliminary and final plans, specifications and cost estimates. State shall, if they prepare these documents, offer Agency the opportunity to review and approve the documents prior to advertising for bids. 13. 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. 14. State shall prepare contract and bidding documents, advertise for bid proposals, and award all contracts. 15. Upon State's award of a construction contract, State shall perform independent assurance testing in accordance with State and FHW A Standards, 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. 16. State shall, as a Project expense, assign a liaison person to provide Project monitoring as needed throughout all phases of Project activities (preliminary engineering, right-of-way acquisition, and construction). The liaison shall process reimbursement for federal participation costs. RIGHT OF WAY 17. State is responsible for proper acquisition of the necessary right-of-way and easements for construction and maintenance of the Project. Agency may perform acquisition of the necessary right of way and easements for construction and maintenance of the Project, provided Agency (or Agency's consultant) are qualified to do such work as required by the State's Right of Way Manual and have obtained prior approval from State's Region Right of Way office to do such work. 18. Regardless of who acquires or performs any of the right of way activities, 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. State shall always be responsible for requesting project funding, coordinating certification of the right of way, and providing oversight and monitoring. Funding authorization requests for federal right of way funds must be sent through the State's Region Right of Way offices on all projects. All projects must have right of way certification coordinated through State's Region Right of Way offices (even for projects where no federal funds were used for right of way, but federal funds were used elsewhere on the Project). Agency should contact the State's Region Right of Way office for additional information or clarification. 19. State shall review all right of way activities engaged in by Agency to assure compliance with applicable laws and regulations. Agency agrees that right of way activities shall be in accord with the Uniform Relocation Assistance & Real Property Acquisition Policies Act of 1970, as amended, ORS Chapter 35, FHW A Federal-Aid Policy Guide, State's Right of Way Manual and the Code of Federal Regulations, Title 23, Part 710 and Title 49, Part 24. 20. If any real 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 Agency/State Agreement No. 25026 regulations, which are in effect at the time of disposition. Reimbursement to State and FHW A of the required proportionate shares of the fair market value may be required. 21. Agency insures that all Project right of way monumentation will be conducted in conformance with ORS 209.155. 22. State and Agency grants each other authority to enter onto the other's right of way for the performance of the Project. AGENCY OBLIGATIONS FINANCE 23. Federal funds shall be applied toward Project costs at the current federal-aid matching ratio, unless otherwise agreed and allowable by law. Agency shall be responsible for the entire match amount, unless otherwise agreed to and specified in the intergovernmental agreement. If federal funds are used, Agency will specify the Catalog of Federal Domestic Assistance (CFDA) number in the Agreement. Agency will also determine and clearly state in the Agreement if recipient is a sub recipient or vendor, using criteria in Circular A-133. 24. 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 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 45 days of receipt of written notification by State of the final amount due, unless the contract is canceled. Any unnecessary balance of a cash deposit, based on the actual bid, will be refunded within 45 days of receipt by State of the Project sponsor's written request. C. Pursuant to ORS 366.425, the advance deposit may be in the form of 1) money deposited in the State Treasury (an option where a deposit is made in the Local Government Investment Pool, and an Irrevocable Limited Power of Attorney is sent to the Highway Finance Office), or 2) an Irrevocable Letter of Credit issued by a local bank in the name of State, or 3) cash. D. Agency may satisfy all or part of any matching funds requirements by use of in-kind contributions rather than cash when prior written approval has been given by State. 25. If the estimated cost exceeds the total matched federal funds available, Agency shall deposit its share of the required matching funds, plus 100 percent of all costs in excess of the total matched federal funds. Agency shall also pay 100 percent of the cost of any item in which FHW A 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 that Agency may be withheld to pay the non-participating costs. If State approves processes, procedures, or contract administration outside the Local Agency Guidelines that result in items being declared non-participating, those items will not result in the withholding of Agency's future allocations of federal funds or the future allocations of State Highway Trust Funds. 26. 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. Agency/State Agreement No. 25026 27. If Agency makes a written request for the cancellation of a federal-aid project; Agency shall bear 100 percent of all costs as of the date of cancellation. If State was the sole cause of the cancellation, State shall bear 100 percent of all costs incurred. If it is determined that the cancellation was caused by third parties or circumstances beyond the control of State or Agency, Agency shall bear all development costs, whether incurred by 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. 28. Agency shall follow requirements of the Single Audit Act. The requirements stated in the Single Audit Act must be followed by those local governments and non-profit organizations receiving $500,000 or more in federal funds. The Single Audit Act of 1984, PL 98-502 as amended by PL 104-156, described in "OMB CIRCULAR NO. A-133", requires local governments and non-profit organizations to obtain an audit that includes internal controls and compliance with federal laws and regulations of all federally-funded programs in which the local agency participates. The cost of this audit can be partially prorated to the federal program. 29. 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. 30. Agency shall present invoices for 100 percent of actual costs incurred by Agency on behalf of the Project directly to State's Liaison Person for review and approval. Such invoices shall identify the Project and Agreement number, and shall itemize and explain all expenses for which reimbursement is claimed. Billings shall be presented for periods of not less than one-month duration, based on actual expenses to date. All billings received from Agency must be approved by State's Liaison Person prior to payment. Agency's actual costs eligible for federal-aid or State participation shall be those allowable under the provisions of Title 23 CFR Parts .1..11, 140 and 710, Final billings shall be submitted to State for processing within three months from the end of each funding phase as follows: 1) award date of a construction contract for preliminary engineering 2) last payment for right-of-way acquisition and 3) third notification for construction. Partial billing (progress payment) shall be submitted to State within three months from date that costs are incurred. Final billings submitted after the three months shall not be eligible for reimbursement. 31. The cost records and accounts pertaining to work covered by this Agreement are to be kept available for inspection by representatives of State and FHW A for a period of three (3) years following the date of final voucher to FHW A. 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 (Title 49 CFR 18.42). 32. State shall request reimbursement, and Agency agrees to reimburse State, for federal-aid funds distributed to Agency if any of the following events occur: a) Right-of-way acquisition or actual construction of the facility for which preliminary engineering is undertaken is not started by the close of the tenth fiscal year following the fiscal year in which the federal-aid funds were authorized; b) Right-of-way acquisition is undertaken utilizing federal-aid funds and actual construction is not started by the close of the twentieth fiscal year following the Agency/State Agreement No. 25026 fiscal year in which the federal-aid funds were authorized for right-of-way acquisition. c) Construction proceeds after the Project is determined to be ineligible for federal-aid funding (e.g., no environmental approval, lacking permits, or other reasons). 33. Agency shall maintain all Project documentation in keeping with State and FHW A standards and specifications. This shall include, but is not limited to, daily work records, quantity documentation, material invoices and quality documentation, certificates of origin, process control records, test results, and inspection records to ensure that projects are completed in conformance with approved plans and specifications. RAILROADS 34. Agency shall follow State established policy and procedures when impacts occur on railroad property. The policy and procedures are available through State's appropriate Region contact or State's Railroad Liaison. Only those costs allowable under Title 23 CFR Part 646, subpart Band Title 23 CFR Part 140, subpart I, 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, to provide railroad coordination and negotiations. However, State is under no obligation to agree to perform said duties. UTILITIES 35. Agency shall cause to be relocated or reconstructed, all privately or publicly-owned utility conduits, lines, poles, mains, pipes, and all other such facilities of every kind and nature where such relocation or reconstruction is made necessary by the plans of the Project in order to conform the utilities and other facilities with the plans and the ultimate requirements of the Project. Only those utility relocations, which are eligible for federal-aid participation under, Title 23 CFR 645A, shall be included in the total Project costs; all other utility relocations shall be at the sole expense of Agency, or others. State will arrange for utility relocations/adjustments in areas lying within jurisdiction of State, if State is performing the preliminary engineering. Agency may request State in writing to arrange for utility relocations/adjustments lying within Agency jurisdiction, acting on behalf of Agency. This request must be submitted no later than 21 weeks prior to bid let date. However, State is under no obligation to agree to perform said duties. 36. Agency shall follow established State utility relocation policy and procedures. The policy and procedures are available through the appropriate State's Region Utility Specialist or State's Right of Way Section Railroad Liaison, and Utility Engineer. STANDARDS 37. Agency agrees that design standards for all projects on the National Highway System (NHS) and the Oregon State Highway System shall be in compliance to standards specified in the current "State Hiahwav Desion Manual" and related references. Construction plans shall be in conformance with standard practices of State for plans prepared by its own staff. All specifications for the Project shall be in substantial compliance with the most current "0reoon Standard Soecifications for Hiahwav Construction". 38. Agency agrees that minimum design standards for non-NHS projects shall be recommended AASHTO Standards and in accordance with the current "0reaon Bicvcle and Pedestrian Plan", unless otherwise requested by Agency and approved by State. 39. Agency agrees and will verify that the installation of traffic control devices shall meet the warrants prescribed in the "Manual on Uniform Traffic Control Devices and Oregon Supplements". Agency/State Agreement No. 25026 40. All plans and specifications shall be developed in general conformance with the current "Contract Plans Development Guide" and the current "Oregon Standard Specifications for Highway Construction" and/or guidelines provided. 41. The standard unit of measurement for all aspects of the Project may be either System International (SI) Units (metric), or English Units. However, all Project documents and products shall be in one or the other unit of measurement. This includes, but is not limited to, right-of-way, environmental documents, plans and specifications, and utilities. It should be recognized that the State is currently transitioning to English, and will be completely English by 2006. GRADE CHANGE LIABILITY 42. 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. 43. 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. 44. Agency, if a City, by execution of Agreement, gives its consent as required by ORS 373.030(2) to any and all changes of grade within the City limits, and gives its consent as required by ORS 373.050(1) to any and all closure of streets intersecting the highway, if any there be in connection with or arising out of the project covered by the Agreement. CONTRACTOR CLAIMS 45. Agency shall, to the extent permitted by state law, indemnify, hold harmless and provide legal defense for State against all claims brought by the contractor, or others resulting from Agency's failure to comply with the terms of this Agreement. 46. Notwithstanding the foregoing defense obligations under paragraph 45, neither Agency nor any attorney engaged by Agency shall defend any claim in the name of the State of Oregon or any agency of the State of Oregon, nor purport to act as legal representative of the State of Oregon or any of its agencies, without the prior written consent of the Oregon Attorney General. The State of Oregon may, at anytime at its election assume its own defense and settlement in the event that it determines that Agency is prohibited from defending the State of Oregon, or that Agency is not adequately defending the State of Oregon's interests, or that an important governmental principle is at issue or that it is in the best interests of the State of Oregon to do so. The State of Oregon reserves all rights to pursue any claims it may have against Agency if the State of Oregon elects to assume its own defense. MAINTENANCE RESPONSIBILITIES 47. Agency shall, upon completion of construction, thereafter maintain and operate the Project at its own cost and expense, and in a manner satisfactory to State and FHW A. WORKERS' COMPENSATION COVERAGE 48. All employers, including Agency 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. Agency shall ensure that each of its contractors complies with these requirements. LOBBYING RESTRICTIONS 49. Agency certifies by signing the Agreement that: A. No federal appropriated funds have been paid or will be paid, by or on behalf of the undersigned, to any person for influencing or attempting to influence an officer or employee of Agency/State Agreement No. 25026 any federal agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with the awarding of any federal contract, the making of any federal grant, the making of any federal loan, the entering into of any cooperative agreement, and the extension, continuation, renewal, amendment, or modification of any federal contract, grant, loan, or cooperative agreement. B. If any funds other than federal appropriated funds have been paid or will be paid to any person for influencing or attempting to influence an officer or employee of any federal agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with this federal contract, grant, loan, or cooperative agreement, the undersigned shall complete and submit Standard Form-LLL, "Disclosure Form to Report Lobbying," in accordance with its instructions. C. The undersigned shall require that the language of this certification be included in the award documents for all subawards at all tiers (including subgrants, and contracts and subcontracts under grants, subgrants, loans, and cooperative agreements) which exceed $100,000, and that all such subrecipients shall certify and disclose accordingly. 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, use Section 1352. E. Any person who fails to file the required certification shall be subject to a civil penalty of not less than $10,000 and not more than $100,000 for each such failure. Paragraphs 35, 36, and 47 are not applicable to any local agency on state highway projects. Misc. Contracts & Agreements No. 25026 Exhibit B - CMAQ Reporting Form Directions: Complete one form per each proposed or continuing CMAQ-funded project. Within 45 days after the beginning of each Federal fiscal year, submit (or update and resubmit) electronic copies of the form to ODOT CMAQ Program staff. Refer to Attachment A (Guidance - CMAQ Reporting Form) for clarification of CMAQ data requested and the CMAQ reporting process. For further assistance, please contact ODOT CMAQ Program staff at (503) 986-4200. Project Title: _ Project Year: _ CMAQ Project ID # (if known): STIP Project ID #: _ FM IS Project ID #: _ TIP / TSP Project ID # (optional): _ CMAQ Obligation $ (this Fiscal Year): _ Total Project $ (this Fiscal Year): _ MPO or local jurisdiction: _ Non-Attainment or Maintenance Area (check one): D Portland Metro Area D Medford/Ashland Metro Area D Klamath Falls Area D Grants Pass Area D La Grande Area PM-10 emissions benefit (kg/day): )) Qualitative Analysis? Yes D No D D Lakeview Area NOTE: Please attach supporting documentation of quantitative analysis D Oakridge Area or explanation of qualitative analysis method Proiect Reportina Cateaorv (check one main cateaorv and select appropriate subcateaorv from dropdown list: D Demand Management D I/M and Other TCMs D Pedestrian/Bicycle D Shared Ride D Traffic Flow Improvements D Transit D Other / No Category D Deobligation Please select one of the followina: This is a new CMAQ project proposal. This is a continuing CMAQ project. D D Is this a planning or project development activity? Yes D No D Is this an outreach activity? Is this a TCM in an approved SIP? Is this an Experimental Pilot Project? Is this a Public-Private Partnership? YesD YesD YesD YesD NoD NoD NoD NoD Emissions Benefit Provided bv Proiect: VOC emissions benefit (kg/day): )) Qualitative Analysis? YesD NoD CO emissions benefit (kg/day): )) Qualitative Analysis? NOx emissions benefit (kg/day): )) Qualitative Analysis? YesD NoD YesD NoD Subcategories: (select one) Subcategories: (select one) Subcategories: (select one) Subcategories: (select one) Subcategories: (select one) Subcategories: (select one) Project Description: NOTE: Project Description should include project length, names of relevant roadways, a concise narrative of work to be performed, etc. Additional Project Information: _ NOTE: Please provide any additional descriptive information regarding Project Reporting Subcategory.