HomeMy WebLinkAbout2015-145 IGA - ODOT - No 30285 - Hersey Sidewalk - Main-Oak
Misc. Contracts and Agreements
No. 30285
INTERGOVERNMENTAL AGREEMENT
FOR RIGHT OF WAY SERVICES
Hersey Street Sidewalk: N Main Street to Oak Street (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 CITY OF ASHLAND, acting by and through its elected officials, hereinafter referred to as
"Agency," both herein referred to individually or collectively as "Party" or "Parties."
RECITALS
1. By the authority granted in Oregon Revised Statute (ORS) 190.110, 283.110, 366.572
and 366.576, state agencies may enter into agreements with units of local government or
other state agencies for the performance of any or all functions and activities that a Party
to the agreement, its officers, or agents have the authority to perform.
2. By the authority granted in ORS 366.425, State may accept deposits of money or an
irrevocable letter of credit from any county, city, road district, person, firm, or corporation for
the performance of work on any public highway within the State. When said money or a
letter of credit is deposited, State shall proceed with the Project. Money so deposited shall
be disbursed for the purpose for which it was deposited.
3. That certain Hersey Street is a city street under the jurisdiction and control of Agency and
Agency may enter into an agreement for the acquisition of real property.
4. N/A, is a part of the state highway system under the jurisdiction and control of the Oregon
Transportation Commission (OTC).
5. This Agreement shall define roles and responsibilities of the Parties regarding the real
property to be used as part of right of way for road, street or construction of public
improvement. The scope and funding is further described in Local Agency Agreement
number 29101. Hereinafter, all acts necessary to accomplish services in this Agreement
shall be referred to as "Project."
6. As of this time there are no local public agencies (LPAs) certified to independently
administer federal-aid projects for right of way services. Therefore, State is ultimately
responsible for the certification and oversight of all right of way activities under this
Agreement (except as provided under "Agency Obligations" for LPAs in State's certification
program for consultant selection).
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, to accomplish the objectives in Agreement No. 29101, State and
Agency agree to perform certain right of way activities shown in Special Provisions - Exhibit
A, attached hereto and by this reference made a part hereof. For the right of way services
RAN Services IGA (Revised October 10, 2014) - 1 -
O
Q~ - Department of Transportation
OrE Region 3
go n
3500 NW Stewart Parkway
Kate Brown, Governor
Roseburg, OR 97470
Phone: 541-957-3500
Fax: 541-672-6148
FILE CODE:
May 14, 2015
City of Ashland
Scott Fleury
Engineering Services Manager
20 E Main St.
Ashland, OR 97520
RE: ODOT Agreement No. 30285
Dear Scott:
have enclosed one (1) Agreement No. 30285 for the City's files.
If you have any questions or need further information, please contact me.
cerely,
Je'an0e Denn
Agreement Coordinator
541.957.3508
Enclosure
State performs on behalf of the Agency, under no conditions shall Agency's obligations
exceed a maximum of $20,000.00, including all expenses, unless agreed upon by both
Parties.
2. The work shall begin on the date all required signatures are obtained and shall be
completed no later than July 31, 2019, on which date this Agreement automatically
terminates unless extended by a fully executed amendment.
3. The process to be followed by the Parties in carrying out this Agreement is set out in Exhibit
A.
4. It is further agreed both Parties will strictly follow the rules, policies and procedures of the
Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, as
amended, ORS Chapter 35 and the "State Right of Way Manual."
STATE OBLIGATIONS
1. State shall perform the work described in Special Provisions - Exhibit A.
2. With the exception of work related to appraisals, State shall not enter into any subcontracts
for any of the work scheduled under this Agreement without obtaining prior written approval
from Agency.
3. State shall perform the service under this Agreement as an independent contractor and
shall be exclusively responsible for all costs and expenses related to its employment of
individuals to perform the work under this Agreement including, but not limited to, retirement
contributions, workers compensation, unemployment taxes, and state and federal income
tax withholdings.
4. State's right of way contact person for this Project is Jayne Randleman, Senior Right of
Way Agent, 100 Antelope Road, White City, OR 97503, 541-774-6394,
jayne.a.randleman@odot.state. or.us, or assigned designee upon individual's absence.
State shall notify the other Party in writing of any contact changes during the term of this
Agreement.
AGENCY OBLIGATIONS
1. Agency shall perform the work described in Special Provisions - Exhibit A.
2. Agency certifies, at the time this Agreement is executed, that sufficient funds are available
and authorized for expenditure to finance costs of this Agreement within Agency's current
appropriation or limitation of current budget. Agency is willing and able to finance all, or its
pro-rata share of all, costs and expenses incurred in the Project up to its maximum.
3. Agency's needed right of way services, as identified in Exhibit A, may be performed by
qualified individuals from any of the following sources:
a. Agency staff,
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b. State staff,
c. Staff of another local public agency, as described in ODOT's Right of Way Manual
and approved by the State's Region Right of Way Office;
d. Consultants from State's Full Service Architectural and Engineering (A&E) Price
Agreement 2 Tier Selection Process. Tier 2 procurements must be requisitioned
through State's Local Agency Liaison (LAL) with solicitation process administered by
State Procurement Office. Forms and procedures for Tier 2 process are located at.-
http://www.oregon.gov/ODOT/CS/OPO/docs/fs/tier2quide.doc-I
e. *Appraiser services procured by Agency from State's Qualified Appraiser List (on line
at http://www.oregon.gov/ODOT/HWY/ROW/Pages/index.aspx);
f. *Other right of way related services procured by Agency from any source of qualified
contractors or consultants.
* Selections may be based on price alone, price and qualifications, or qualifications alone
followed by negotiation. Federally funded procurements by Agency for right of way
services must be conducted under State's certification program for consultant selection
and must comply with requirements in the LPA A&E Requirements Guide (and must use
the State's standard A&E Contract Template for LPAs which may be modified to include
State-approved provisions required by Agency). State and local funded procurements
by Agency must be in conformance with applicable State rules and statutes for A&E
"Related Services" (and Agency may use its own contract document).
4. If Agency intends to use Agency staff, staff of another local public agency, consultants
(except for consultants on State's Qualified Appraiser List), or contractors to perform right
of way services scheduled under this Agreement, Agency must receive prior written
approval from State's Region Right of Way Office.
5. The LPA A&E Requirements Guide and A&E Contract Template referenced above under
paragraph 3 are available on the following Internet page:
http://www.oregon.gov/ODOT/CS/OPO/Pages/ae.aspx#Local Public Agency(LPA) Cons
ultant Templates and Guidance Docs.
6. Agency or its subcontractor will strictly follow the rules, policies and procedures of the
Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, as
amended, ORS Chapter 35 and the "State Right of Way Manual."
7. Agency represents that this Agreement is signed by personnel authorized to do so on
behalf of Agency.
8. Agency's right of way contact person for this Project is Scott Fleury, Engineering Services
Manager, 51 Winburn Way, Ashland, OR 97520, 541-552-2412, fleurys@ashland.or.us, or
assigned designee upon individual's absence. Agency shall notify the other Party in writing
of any contact information changes during the term of this Agreement.
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PAYMENT FOR SERVICES AND EXPENDITURES:
1. In consideration for the services performed by State (as identified in the attached Exhibit
A), Agency agrees to pay or reimburse State a maximum amount of $20,000.00. Said
maximum amount shall include reimbursement for all expenses, including travel
expenses. Travel expenses shall be reimbursed to State in accordance with the current
Oregon Department of Administrative Services' rates. Any expenditure beyond federal
participation will be from, or reimbursed from, Agency funds. Payment in Agency and/or
federal funds in any combination shall not exceed said maximum, unless agreed upon by
both Parties.
2. Agency agrees to reimburse salaries and payroll reserves of State employees working on
Project, direct costs, costs of rental equipment used, and per-diem expenditures.
a. Agency agrees to pay or reimburse all salaries and payroll reserves of State employees
working on Project, direct costs, costs of rental equipment used, and per-diem
expenditures, plus 10 percent surcharge on salary costs to cover administrative costs of
Right of Way Section.
b. State shall present invoices for 100 percent of actual costs incurred by State on behalf
of the Project directly to Agency's right of way contact for review and approval. Such
invoices shall be in a form identifying the Project, the agreement number, invoice
number or account number, and shall itemize all expenses for which reimbursement is
claimed. Invoices shall be presented for periods of not less than one (1) month
duration, based on actual expenses incurred.
c. Upon completion of right of way acquisition and receipt from State of a final itemized
statement, Agency shall pay an amount which, when added to said advance deposit,
will equal 100 percent of the final total actual cost. Any portion of deposits made in
excess of the final total costs of Project shall be refunded to Agency.
GENERAL PROVISIONS:
1. This Agreement may be terminated by either Party upon thirty (30) days' notice, in writing
and delivered by certified mail or in person, under any of the following conditions:
a. If either Party fails to provide services called for by this Agreement within the time
specified herein or any extension thereof.
b. If either Party fails to perform any of the other provisions of this Agreement or so fails
to pursue the work as to endanger performance of this Agreement in accordance with
its terms, and after receipt of written notice fails to correct such failures within ten (10)
days or such longer period as may be authorized.
c. If Agency fails to provide payment of its share of the cost of the Project.
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d. If State fails to receive funding, appropriations, limitations or other expenditure
authority sufficient to allow State, in the exercise of its reasonable administrative
discretion, to continue to make payments for performance of this Agreement.
e. If federal or state laws, regulations or guidelines are modified or interpreted in such a
way that either the work under this Agreement is prohibited or State is prohibited from
paying for such work from the planned funding source.
2. Any termination of this Agreement shall not prejudice any rights or obligations accrued to
the Parties prior to termination.
3. Agency acknowledges and agrees that State, the Oregon Secretary of State's Office, the
federal government, and their duly authorized representatives shall have access to the
books, documents, papers, and records of Agency which are directly pertinent to this
Agreement for the purpose of making audit, examination, excerpts, and transcripts for a
period of six (6) years after final payment. Copies of applicable records shall be made
available upon request. Payment for costs of copies is reimbursable by State.
4. Agency shall comply with all federal, state, and local laws, regulations, executive orders
and ordinances applicable to the work under this Agreement, including, without limitation,
the provisions of ORS 279B.220, 279B.225, 279B.230, 27913.235 and 27913.270
incorporated herein by reference and made a part hereof. Without limiting the generality
of the foregoing, Agency expressly agrees to comply with (i) Title VI of Civil Rights Act of
1964; (ii) Title V and Section 504 of the Rehabilitation Act of 1973; (iii) the Americans with
Disabilities Act of 1990 and ORS 659A.142; (iv) all regulations and administrative rules
established pursuant to the foregoing laws; and (v) all other applicable requirements of
federal and state civil rights and rehabilitation statutes, rules and regulations.
5. All employers that employ subject workers who work under this Agreement in the State of
Oregon shall comply with ORS 656.017 and provide the required workers' compensation
coverage unless such employers are exempt under ORS 656.126. Employers Liability
insurance with coverage limits of not less than $500,000 must be included. Both Parties
shall ensure that each of its subcontractors complies with these requirements.
6. If any third party makes any claim or brings any action, suit or proceeding alleging a tort
as now or hereafter defined in ORS 30.260 ("Third Party Claim") against State or Agency
with respect to which the other Party may have liability, the notified Party must promptly
notify the other Party in writing of the Third Party Claim and deliver to the other Party a
copy of the claim, process, and all legal pleadings with respect to the Third Party Claim.
Each Party is entitled to participate in the defense of a Third Party Claim and to defend a
Third Party Claim with counsel of its own choosing. Receipt by a Party of the notice and
copies required in this paragraph and meaningful opportunity for the Party to participate in
the investigation, defense and settlement of the Third Party Claim with counsel of its own
choosing are conditions precedent to that Party's liability with respect to the Third Party
Claim.
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7. With respect to a Third Party Claim for which State is jointly liable with Agency (or would
be if joined in the Third Party Claim), State shall contribute to the amount of expenses
(including attorneys' fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred and paid or payable by Agency in such proportion as is appropriate
to reflect the relative fault of State on the one hand and of Agency on the other hand in
connection with the events which resulted in such expenses, judgments, fines or
settlement amounts, as well as any other relevant equitable considerations. The relative
fault of State on the one hand and of Agency on the other hand shall be determined by
reference to, among other things, the Parties' relative intent, knowledge, access to
information and opportunity to correct or prevent the circumstances resulting in such
expenses, judgments, fines or settlement amounts. State's contribution amount in any
instance is capped to the same extent it would have been capped under Oregon law,
including the Oregon Tort Claims Act, ORS 30.260 to 30.300, if State had sole liability in
the proceeding.
8. With respect to a Third Party Claim for which Agency is jointly liable with State (or would
be if joined in the Third Party Claim), Agency shall contribute to the amount of expenses
(including attorneys' fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred and paid or payable by State in such proportion as is appropriate to
reflect the relative fault of Agency on the one hand and of State on the other hand in
connection with the events which resulted in such expenses, judgments, fines or
settlement amounts, as well as any other relevant equitable considerations. The relative
fault of Agency on the one hand and of State on the other hand shall be determined by
reference to, among other things, the Parties' relative intent, knowledge, access to
information and opportunity to correct or prevent the circumstances resulting in such
expenses, judgments, fines or settlement amounts. Agency's contribution amount in any
instance is capped to the same extent it would have been capped under Oregon law,
including the Oregon Tort Claims Act, ORS 30.260 to 30.300, if it had sole liability in the
proceeding.
9. The Parties shall attempt in good faith to resolve any dispute arising out of this
Agreement. In addition, the Parties may agree to utilize a jointly selected mediator or
arbitrator (for non-binding arbitration) to resolve the dispute short of litigation.
10. When federal funds are involved in this Agreement, Exhibits B and C are attached hereto
and by this reference made a part of this Agreement, and are hereby certified to by
Agency.
11. When federal funds are involved in this Agreement, Agency, as a recipient of federal
funds, pursuant to this Agreement with the State, shall assume sole liability for Agency's
breach of any federal statutes, rules, program requirements and grant provisions
applicable to the federal funds, and shall, upon Agency's breach of any such conditions
that requires the State to return funds to the Federal Highway Administration, hold
harmless and indemnify the State for an amount equal to the funds received under this
Agreement; or if legal limitations apply to the indemnification ability of Agency, the
indemnification amount shall be the maximum amount of funds available for expenditure,
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including any available contingency funds or other available non-appropriated funds, up to
the amount received under this Agreement.
12. The Parties hereto agree that if any term or provision of this Agreement is declared by a
court of competent jurisdiction to be invalid, unenforceable, illegal or in conflict with any
law, the validity of the remaining terms and provisions shall not be affected, and the rights
and obligations of the Parties shall be construed and enforced as if the Agreement did not
contain the particular term or provision held to be invalid.
13. 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.
14. This Agreement and attached exhibits and Agreement No. 29101 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.
THE PARTIES, by execution of this Agreement, hereby acknowledge that their signing
representatives have read this Agreement, understand it, and agree to be bound by its terms
and conditions.
Signature Page to Follow
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CITY OF ASHLAND, by and through STATE OF OREGON, by and through
elected officials, its D rtme t of Transp rtation
By By
Ma pr y ,State fight of Way Managct%
Date ` Date
Ci y Recorder
By Z;7z
Date e APPROVED AS TO LEGAL SUFFICIENCY Date
Agency Counsel
Date Date
Agency Contact: APPROVED AS TO LEGAL SUFFICIENCY
Scott Fleury
Engineering Services Manager By N/A
51 Winburg Way Assistant Attorney General
Ashland, OR 97520
541-552-2412 Date
fleurys@ashland.or.us
APPROVED
State Contact: (If Litigation Work Related to Condemnation is
Kelli Sparkman to be done by State)
Local Agency Liaison
100 Antelope Road By N/A
White City, OR 97503 Chief Trial Counsel
541-774-6382
kelli.sparkman@odot.state.or.us Date
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SPECIAL PROVISIONS EXHIBIT A
Right of Way Services
THINGS TO BE DONE BY STATE OR AGENCY
1. Pursuant to this Agreement, the work performed on behalf of the Agency can be performed
by the Agency, the Agency's consultant, the State or a State Flex Services consultant, as
listed under Agency Obligations, paragraph 3 of this Agreement. The work may be
performed by Agency staff or any of these representatives on behalf of Agency individually
or collectively provided they are qualified to perform such functions and after receipt of
approval from the State's Region 3 Right of Way Manager.
2. With the exception of work related to appraisals, State shall not enter into any
subcontracts for any of the work scheduled under this Agreement without obtaining prior
written approval from Agency.
Instructions: Insert either: State, Agency, or N/A on each line.
A. Preliminary Phase
1. Agency shall provide preliminary cost estimates.
2. Agency shall make preliminary contacts with property owners.
3. Agency shall gather and provide data for environmental documents.
4. Agency shall develop access and approach road list.
5. Agency shall help provide field location and Project data.
B. Acquisition Phase
1. General:
a. When doing the Acquisition work, as described in this Section, Agency shall provide
State with a status report of the Project monthly.
b. Title to properties acquired shall be in the name of the Agency.
c. The Agency shall adopt a resolution of intention and determination of necessity in
accord with ORS 35.235 and ORS 35.610, authorizing acquisition and
condemnation, such approval will be conditioned on passage of a resolution by
Agency substantially in the form attached hereto as Exhibit D, and by this reference
made a part hereof. If the Oregon Department of Justice is to handle condemnation
work, prior approval evidenced by Chief Trial Counsel, Department of Justice,
signature on this Agreement is required; and authorization for such representation
shall be included in the resolution adopted by the Agency. Prior approval by Oregon
Department of Justice is required.
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2. Legal Descriptions:
a. Agency shall provide sufficient horizontal control, recovery and retracement surveys,
vesting deeds, maps and other data so that legal descriptions can be written.
b. Agency shall provide construction plans and cross-section information for the
Project.
c. Agency shall write legal descriptions and prepare right of way maps. If the Agency
acquires any right of way on a State highway, the property descriptions and right of
way maps shall be based upon centerline stationing and shall be prepared in
accordance with the current "ODOT Right of Way & Rail/Utility Coordination
Contractor Services Guide" and the "Right of Way Engineering Manual." The
preliminary and final versions of the property descriptions and right of way maps
must be reviewed and approved by the State.
d. Agency shall specify the degree of title to be acquired (e.g., fee, easement).
3. Real Property and Title Insurance:
a. Agency shall provide preliminary title reports, if State determines they are needed,
before negotiations for acquisition commence.
b. Agency shall determine sufficiency of title (taking subject to). If the Agency acquires
any right of way on a State highway, sufficiency of title (taking subject to) shall be
determined in accordance with the current "State Right of Way Manual" and the
"ODOT Right of Way & Rail/Utility Coordination Contractor Services Guide." Agency
shall clear any encumbrances necessary to conform to these requirements, obtain
Title Insurance policies as required and provide the State copies of any title policies
for the properties acquired.
c. State shall conduct a Level 1 Initial Site Assessment within project limits to detect
presence of hazardous materials on any property purchase, excavation or
disturbance of structures, as early in the project design as possible, but at a
minimum prior to property acquisition or approved design.
d. State shall conduct a Level 2 Preliminary Site Investigation of sufficient scope to
confirm the presence of contamination, determine impacts to properties and
develop special provisions and cost estimates, if the Level 1 Corridor study
indicates the potential presence of contamination that could impact the properties.
• If contamination is found, a recommendation for remediation will be
presented to Agency.
e. Agency shall be responsible for proper treatment and cost of any necessary
remediation.
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f. State shall conduct asbestos, lead paint and other hazardous materials surveys for
all structures that will be demolished, renovated or otherwise disturbed. Asbestos
surveys must be conducted by an AHERA (asbestos hazard emergency response
act) certified inspector.
4. Appraisal:
a. Agency shall conduct the valuation process of properties to be acquired.
b. Agency shall perform the Appraisal Reviews to set Just Compensation.
c. Agency shall recommend Just Compensation, based upon a review of the valuation
by qualified personnel.
5. Negotiations:
a. Agency shall tender all monetary offers to land-owners in writing at the compensation
shown in the appraisal review. Agency shall have sole authority to negotiate and
make all settlement offers. Conveyances taken for more or less than the approved
Just Compensation will require a statement justifying the settlement. Said statement
will include the consideration of any property trades, construction obligations and
zoning or permit concessions.
b. State and Agency shall determine a date for certification of right of way and agree to
cosign the State's Right of Way Certification form. State and Agency agree
possession of all right of way shall occur prior to advertising for any construction
contract, unless exceptions have been agreed to by Agency and State.
c. Agency agrees to file all Recommendations for Condemnation at least seventy (70)
days prior to the right of way certification date if negotiations have not been
successful on those properties.
6. Relocation:
a. Agency shall perform any relocation assistance, make replacement housing
computations, and do all things necessary to relocate any displaced parties on the
Project.
b. Agency shall make all relocation and moving payments for the Project.
c. Agency shall facilitate the relocation appeal process.
C. Closing Phase
1. Agency shall close all transactions. This includes drawing of deeds, releases and
satisfactions necessary to clear title, obtaining signatures on release documents, and
making all payments. State shall submit all signed Final Report packets, information
required by the Uniform Act, and agreements to the Agency.
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2. Agency shall record conveyance documents, only upon acceptance by appropriate
agency.
D. Property Management
1. Agency shall take possession of all the acquired properties. There shall be no
encroachments of buildings or other private improvements allowed upon the State
highway right of way.
2. Agency shall dispose of all improvements and excess land consistent with State
prevailing laws and policies.
E. Condemnation
1. Agency may offer mediation if the Agency and property owners have reached an
impasse.
2. Agency shall perform all administrative functions in preparation of the condemnation
process, such as preparing final offer and complaint letters.
3. Agency shall perform all legal and litigation work related to the condemnation process.
Agency is responsible for passage of a resolution substantially in the form attached
hereto as Exhibit D, and by this reference made a part hereof, specifically identifying the
property being acquired.
4. When State shall perform legal or litigation work related to the condemnation process,
Agency acknowledges, agrees and undertakes to assure that no member of Agency's
board or council, nor Agency's mayor, when such member or mayor is a practicing
attorney, nor Agency's attorney nor any member of the law firm of Agency's attorney,
board or council member, or mayor, will represent any party, except Agency, against the
State of Oregon, its employees or contractors, in any matter arising from or related to
the Project which is the subject of this Agreement.
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F. Transfer of Right of Way to State
When right of way is being acquired in Agency's name, Agency agrees to transfer and State
agrees to accept all right of way acquired on the State highway. The specific method of
conveyance will be determined by the Agency and the State at the time of transfer and shall
be coordinated by the State's Region Right of Way Manager. Agency agrees to provide the
State all information and file documentation the State deems necessary to integrate the
right of way into the State's highway system. At a minimum, this includes.. copies of all
recorded conveyance documents used to vest title in the name of the Agency during the
right of way acquisition process, and the Agency's Final Report or Summary Report for
each acquisition file that reflects the terms of the acquisition and all agreements with the
property owner(s).
G. Transfer of Right of Way to Agency
When right of way is being acquired in State's name, State agrees to transfer and Agency
agrees to accept all right of way acquired on the Agency's facility. The specific method of
conveyance will be determined by the State and the Agency at the time of transfer and
shall be coordinated by the State's Region Right of Way Manager. If requested, State
agrees to provide Agency information and file documentation associated with the transfer.
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For purposes of Exhibits B and C, references to Department shall mean State, references to Contractor shall
mean Agency, and references to Contract shall mean Agreement.
EXHIBIT B (Local Agency or State Agency)
CONTRACTOR CERTIFICATION
Contractor certifies by signing this Contract that Contractor has not:
(a) Employed or refained for a commission, percentage, brokerage, contingency fee or other
consideration, any firm or person (other than a bona fide employee working solely for me or the above
Contractor) to solicit or secure this Contract,
(b) agreed, as an express or implied condition for obtaining this Contract, to employ or retain the services
of any firm or person in connection with carrying out the Contract, or
(c) paid or agreed to pay, to any firm, organization or person (other than a bona fide employee working
solely for me or the above Contractor), any fee, contribution, donation or consideration of any kind for
or in connection with, procuring or carrying out the Contract, except as here expressly stated (if any):
Contractor further acknowledges that this certificate is to be furnished to the Federal Highway Administration,
and is subject to applicable State and Federal laws, both criminal and civil.
DEPARTMENT OFFICIAL CERTIFICATION
Department official likewise certifies by signing this Contract that Contractor or his/her representative has not
been required directly or indirectly as an expression of implied condition in connection with obtaining or carrying
out this Contract to:
(a) Employ, retain or agree to employ or retain, any firm or person or
(b) pay or agree to pay, to any firm, person or organization, any fee, contribution, donation or
consideration of any kind except as here expressly stated (if any):
Department official further acknowledges this certificate is to be furnished to the Federal Highway Administration,
and is subject to applicable State and Federal laws, both criminal and civil.
Exhibit C
Federal Provisions
Oregon Department of Transportation
CERTIFICATION OF NONINVOLVEMENT IN ANY DEBARMENT AND SUSPENSION
Contractor certifies by signing this Contract that to the best of its knowledge and belief, it and its principals:
1. Are not presently debarred, suspended, 2. Have not within a three-year period preceding
proposed for debarment, declared ineligible or this Contract been convicted of or had a civil
voluntarily excluded from covered judgment rendered against them for
transactions by any Federal department or commission of fraud or a criminal offense in
agency; connection with obtaining, attempting to
obtain or performing a public (federal, state or
local) transaction or contract under a public
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transaction; violation of federal or state will be considered in connection with the
antitrust statutes or commission of Department determination to enter into this
embezzlement, theft, forgery, bribery transaction. Failure to furnish an explanation
falsification or destruction of records, making shall disqualify such person from
false statements or receiving stolen property; participation in this transaction.
3. The certification in this clause is a material
3. Are not presently indicted for or otherwise representation of fact upon which reliance
criminally or civilly charged by a was placed when the Department
governmental entity (federal, state or local) determined to enter into this transaction. If it
with commission of any of the offenses is later determined that the Contractor
enumerated in paragraph (1)(b) of this knowingly rendered an erroneous
certification; and certification, in addition to other remedies
available to the Federal Government or the
4. Have not within a three-year period preceding Department may terminate this transaction
this Contract had one or more public for cause of default.
transactions (federal, state or local)
terminated for cause or default. 4. The Contractor shall provide immediate
written notice to the Department if at any
Where the Contractor is unable to certify to any of time the Contractor learns that its
the statements in this certification, such prospective certification was erroneous when submitted
participant shall submit a written explanation to or has become erroneous by reason of
Department. changed circumstances.
List exceptions. For each exception noted, indicate 5. The terms "covered transaction", "debarred",
to whom the exception applies, initiating agency, and "suspended", "ineligible", "lower tier covered
dates of action. If additional space is required, attach transaction", "participant", "person", "primary
another page with the following heading: Certification covered transaction", "principal", and
Exceptions continued, Contract Insert. "voluntarily excluded", as used in this clause,
have the meanings set out in the Definitions
EXCEPTIONS: and Coverage sections of the rules
implementing Executive Order 12549. You
Exceptions will not necessarily result in denial of may contact the Department's Program
award, but will be considered in determining Section (Tel. (503) 986-3400) to which this
Contractor responsibility. Providing false information proposal is being submitted for assistance in
may result in criminal prosecution or administrative obtaining a copy of those regulations.
sanctions.
6. The Contractor agrees by entering into this
The Contractor is advised that by signing this Contract that, should the proposed covered
Contract, the Contractor is deemed to have signed transaction be entered into, it shall not
this certification. knowingly enter into any lower tier covered
transactions with a person who is debarred,
II. INSTRUCTIONS FOR CERTIFICATION suspended, declared ineligible or voluntarily
REGARDING DEBARMENT, SUSPENSION, excluded from participation in this covered
AND OTHER RESPONSIBILITY MATTERS- transaction, unless authorized by the
PRIMARY COVERED TRANSACTIONS Department or agency entering into this
transaction.
1. By signing this Contract, the Contractor is
providing the certification set out below. 7. The Contractor further agrees by entering
into this Contract that it will include the
2. The inability to provide the certification Addendum to Form FHWA-1273 titled,
required below will not necessarily result in "Appendix B--Certification Regarding
denial of participation in this covered Debarment, Suspension, Ineligibility and
transaction. The Contractor shall explain Voluntary Exclusion--Lower Tier Covered
why he or she cannot provide the Transactions", provided by the Department
certification set out below. This explanation
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entering into this covered transaction without 1. By signing and submitting this Contract, the
modification, in all lower tier covered prospective lower tier participant is providing
transactions and in all solicitations for lower the certification set out below.
tier covered transactions.
2. The certification in this clause is a material
8. A participant in a covered transaction may representation of fact upon which reliance
rely upon a certification of a prospective was placed when this transaction was
participant in a lower tier covered transaction entered into. If it is later determined that the
that it is not debarred, suspended, ineligible prospective lower tier participant knowingly
or voluntarily excluded from the covered rendered an erroneous certification, in
transaction, unless it knows that the addition to other remedies available to the
certification is erroneous. A participant may Federal Government, the department or
decide the method and frequency by which it agency with which this transaction originated
determines the eligibility of its principals. may pursue available remedies, including
Each participant may, but is not required to, suspension and/or debarment.
check the Nonprocurement List published by
the U. S. General Services Administration. 3. The prospective lower tier participant shall
provide immediate written notice to the
9. Nothing contained in the foregoing shall be person to which this Contract is submitted if
construed to require establishment of a at any time the prospective lower tier
system of records to render in good faith the participant learns that its certification was
certification required by this clause. The erroneous when submitted or has become
knowledge and information of a participant is erroneous by reason of changed
not required to exceed that which is normally circumstances.
possessed by a prudent person in the
ordinary course of business dealings. 4. The terms "covered transaction", "debarred",
"suspended", "ineligible", "lower tier covered
10. Except for transactions authorized under transaction", "participant", "person", "primary
paragraph 6 of these instructions, if a covered transaction", "principal", "proposal",
participant in a covered transaction and "voluntarily excluded", as used in this
knowingly enters into a lower tier covered clause, have the meanings set out in the
transaction with a person who is suspended, Definitions and Coverage sections of rules
debarred, ineligible or voluntarily excluded implementing Executive Order 12549. You
from participation in this transaction, in may contact the person to which this
addition to other remedies available to the Contract is submitted for assistance in
Federal Government or the Department, the obtaining a copy of those regulations.
Department may terminate this transaction
for cause or default. 5. The prospective lower tier participant agrees
by submitting this Contract that, should the
III. ADDENDUM TO FORM FHWA-1273, proposed covered transaction be entered
REQUIRED CONTRACT PROVISIONS into, it shall not knowingly enter into any
lower tier covered transaction with a person
This certification applies to subcontractors, material who is debarred, suspended, declared
suppliers, vendors, and other lower tier participants. ineligible or voluntarily excluded from
participation in this covered transaction,
• Appendix B of 49 CFR Part 29 - unless authorized by the department or
agency with which this transaction
Appendix B--Certification Regarding Debarment, originated.
Suspension, Ineligibility, and Voluntary
Exclusion--Lower Tier Covered Transactions 6. The prospective lower tier participant further
agrees by submitting this Contract that it will
Instructions for Certification include this clause titled, "Certification
Regarding Debarment, Suspension,
Ineligibility and Voluntary Exclusion--Lower
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Tier Covered Transaction", without b. Where the prospective lower tier
modification, in all lower tier covered participant is unable to certify to any of
transactions and in all solicitations for lower the statements in this certification, such
tier covered transactions. prospective participant shall submit a
written explanation to Department.
7. A participant in a covered transaction may
rely upon a certification of a prospective IV. EMPLOYMENT
participant in a lower tier covered transaction
that it is not debarred, suspended, ineligible 1. Contractor warrants that he has not
or voluntarily excluded from the covered employed or retained any company or
transaction, unless it knows that the person, other than a bona fide employee
certification is erroneous. A participant may working solely for Contractor, to solicit or
decide the method and frequency by which it secure this Contract and that he has not paid
determines the eligibility of its principals. or agreed to pay any company or person,
Each participant may, but is not required to, other than a bona fide employee working
check the nonprocurement list. solely for Contractors, any fee, commission,
percentage, brokerage fee, gifts or any other
8. Nothing contained in the foregoing shall be consideration contingent upon or resulting
construed to require establishment of a from the award or making of this Contract.
system of records to render in good faith the For breach or violation of this warranting,
certification required by this clause. The Department shall have the right to annul this
knowledge and information of a participant is Contract without liability or in its discretion to
not required to exceed that which is normally deduct from the Contract price or
possessed by a prudent person in the consideration or otherwise recover, the full
ordinary course of business dealings. amount of such fee, commission,
percentage, brokerage fee, gift or contingent
9. Except for transactions authorized under fee.
paragraph 5 of these instructions, if a
participant in a covered transaction 2. Contractor shall not engage, on a full or
knowingly enters into a lower tier covered part-time basis or other basis, during the
transaction with a person who is suspended, period of the Contract, any professional or
debarred, ineligible or voluntarily excluded technical personnel who are or have been at
from participation in this transaction, in any time during the period of this Contract, in
addition to other remedies available to the the employ of Department, except regularly
Federal Government, the department or retired employees, without written consent of
agency with which this transaction originated the public employer of such person.
may pursue available remedies, including
suspension and/or debarment. 3. Contractor agrees to perform consulting
services with that standard of care, skill and
Certification Regarding Debarment, diligence normally provided by a professional
Suspension, Ineligibility, and Voluntary in the performance of such consulting
Exclusion--Lower Tier Covered services on work similar to that hereunder.
Transactions Department shall be entitled to rely on the
accuracy, competence, and completeness of
a. The prospective lower tier participant Contractor's services.
certifies, by entering into this Contract,
that neither it nor its principals is V. NONDISCRIMINATION
presently debarred, suspended,
proposed for debarment, declared During the performance of this Contract,
ineligible or voluntarily excluded from Contractor, for himself, his assignees and
participation in this transaction by any successors in interest, hereinafter referred to as
Federal department or agency. Contractor, agrees as follows:
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1. Compliance with Regulations. Contractor employment, without regard to their
agrees to comply with Title VI of the Civil race, creed, color, sex or national origin.
Rights Act of 1964, and Section 162(a) of Such action shall include, but not be
the Federal-Aid Highway Act of 1973 and the limited to the following: employment,
Civil Rights Restoration Act of 1987. upgrading, demotion or transfer;
Contractor shall comply with the regulations recruitment or recruitment advertising;
of the Department of Transportation relative layoff or termination; rates of pay or
to nondiscrimination in Federally assisted other forms of compensation; and
programs of the Department of selection for training, including
Transportation, Title 49, Code of Federal apprenticeship. Contractor agrees to
Regulations, Part 21, as they may be post in conspicuous places, available to
amended from time to time (hereinafter employees and applicants for
referred to as the Regulations), which are employment, notice setting forth the
incorporated by reference and made a part provisions of this nondiscrimination
of this Contract. Contractor, with regard to clause.
the work performed after award and prior to
completion of the Contract work, shall not b. Contractor will, in all solicitations or
discriminate on grounds of race, creed, advertisements for employees placed by
color, sex or national origin in the selection or on behalf of Contractor, state that all
and retention of subcontractors, including qualified applicants will receive
procurement of materials and leases of consideration for employment without
equipment. Contractor shall not participate regard to race, creed, color, sex or
either directly or indirectly in the national origin.
discrimination prohibited by Section 21.5 of
the Regulations, including employment 4. Information and Reports. Contractor will
practices, when the Contract covers a provide all information and reports required
program set forth in Appendix B of the by the Regulations or orders and instructions
Regulations. issued pursuant thereto, and will permit
access to his books, records, accounts,
2. Solicitation for Subcontractors, including other sources of information, and his
Procurement of Materials and Equipment. In facilities as may be determined by
all solicitations, either by competitive bidding Department or FHWA as appropriate, and
or negotiations made by Contractor for work shall set forth what efforts he has made to
to be performed under a subcontract, obtain the information.
including procurement of materials and
equipment, each potential subcontractor or 5. Sanctions for Noncompliance. In the event of
supplier shall be notified by Contractor of Contractor's noncompliance with the
Contractor's obligations under this Contract nondiscrimination provisions of the Contract,
and regulations relative to nondiscrimination Department shall impose such agreement
on the grounds of race, creed, color, sex or sanctions as it or the FHWA may determine
national origin. to be appropriate, including, but not limited
to:
3. Nondiscrimination in Employment (Title VII
of the 1964 Civil Rights Act). During the a. Withholding of payments to Contractor
performance of this Contract, Contractor under the agreement until Contractor
agrees as follows: complies; and/or
a. Contractor will not discriminate against b. Cancellation, termination or suspension
any employee or applicant for of the agreement in whole or in part.
employment because of race, creed,
color, sex or national origin. Contractor 6. Incorporation of Provisions. Contractor will
will take affirmative action to ensure that include the provisions of paragraphs 1
applicants are employed, and that through 6 of this section in every
employees are treated during subcontract, including procurement of
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materials and leases of equipment, unless necessary and reasonable steps in accordance
exempt from Regulations, orders or with 49 CFR 26 to ensure that Disadvantaged
instructions issued pursuant thereto. Business Enterprises have the opportunity to
Contractor shall take such action with compete for and perform contracts. Neither
respect to any subcontractor or procurement Department nor its contractors shall
as Department or FHWA may direct as a discriminate on the basis of race, color, national
means of enforcing such provisions, origin or sex in the award and performance of
including sanctions for noncompliance; federally-assisted contracts. The Contractor
provided, however, that in the event shall carry out applicable requirements of 49
Contractor becomes involved in or is CFR Part 26 in the award and administration of
threatened with litigation with a such contracts. Failure by the Contractor to
subcontractor or supplier as a result of such carry out these requirements is a material
direction, Department may, at its option, breach of this Contract, which may result in the
enter into such litigation to protect the termination of this Contract or such other
interests of Department, and, in addition, remedy as Department deems appropriate.
Contractor may request Department to enter
into such litigation to protect the interests of The DBE Policy Statement and Obligations
the State of Oregon. shall be included in all subcontracts entered into
under this Contract.
VI. DISADVANTAGED BUSINESS
ENTERPRISE (DBE) POLICY Records and Reports. Contractor shall provide
monthly documentation to Department that it is
In accordance with Title 49, Code of Federal subcontracting with or purchasing materials
Regulations, Part 26, Contractor shall agree to from the DBEs identified to meet Contract
abide by and take all necessary and reasonable goals. Contractor shall notify Department and
steps to comply with the following statement: obtain its written approval before replacing a
DBE or making any change in the DBE
DBE POLICY STATEMENT participation listed. If a DBE is unable to fulfill
the original obligation to the Contract,
DBE Policy. It is the policy of the United States Contractor must demonstrate to Department the
Department of Transportation (USDOT) to Affirmative Action steps taken to replace the
practice nondiscrimination on the basis of race, DBE with another DBE. Failure to do so will
color, sex and/or national origin in the award result in withholding payment on those items.
and administration of USDOT assist contracts. The monthly documentation will not be required
Consequently, the DBE requirements of 49 after the DBE goal commitment is satisfactory
CFR 26 apply to this Contract. to Department.
Required Statement For USDOT Financial Any DBE participation attained after the DBE
Assistance Agreement. If as a condition of goal has been satisfied should be reported to
assistance the Agency has submitted and the the Departments.
US Department of Transportation has approved
a Disadvantaged Business Enterprise DBE Definition. Only firms DBE
Affirmative Action Program which the Agency certified by the State of Oregon, Department of
agrees to carry out, this affirmative action Consumer & Business Services, Office of
program is incorporated into the financial Minority, Women & Emerging Small Business,
assistance agreement by reference. may be utilized to satisfy this obligation.
DBE Obligations. The Department and its CONTRACTOR'S DBE CONTRACT GOAL
Contractor agree to ensure that Disadvantaged
Business Enterprises as defined in 49 CFR 26 DBE GOAL 0 %
have the opportunity to participate in the
performance of contracts and subcontracts By signing this Contract, Contractor assures
financed in whole or in part with Federal funds. that good faith efforts have been made to meet
In this regard, Contractor shall take all the goal for the DBE participation specified in
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the Contract for this project as required by ORS $100,000 and that all such subrecipients shall
200.045, and 49 CFR 26.53 and 49 CFR, Part certify and disclose accordingly.
26, Appendix A.
FOR INQUIRY CONCERNING
VII. LOBBYING DEPARTMENT'S DBE PROGRAM
REQUIREMENT CONTACT OFFICE OF
The Contractor certifies, by signing this CIVIL RIGHTS AT (503)986-4354.
agreement to the best of his or her knowledge
and belief, that:
1. No Federal appropriated funds have been
paid or will be paid, by or on behalf of the
undersigned, to any person for influencing or
attempting to influence an officer or
employee of any Federal agency, a Member
of Congress, an officer or employee of
Congress or an employee of a Member of
Congress in connection with the awarding of
any Federal contract, the making of any
Federal grant, the making of any Federal
loan, the entering into of any cooperative
agreement, and the extension, continuation,
renewal, amendment or modification of any
Federal contract, grant, loan or cooperative
agreement.
2. 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 agreement, the
undersigned shall complete and submit
Standard Form-LLL, "Disclosure Form to
Report Lobbying", in accordance with its
instructions.
This certification is a material representation of
fact upon which reliance was placed when this
transaction was made or entered into.
Submission of this certification is a prerequisite
for making or entering into this transaction
imposed by Section 1352, Title 31, U. S. Code.
Any person who fails to file the required
certification shall be subject to a civil penalty of
not less than $10,000 and not more than
$100,000 for each such failure.
The Contractor also agrees by signing this
agreement that he or she shall require that the
language of this certification be included in all
lower tier subagreements, which exceed
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RESOLUTION EXERCISING THE POWER OF EMINENT DOMAIN EXHIBIT D
Right of Way Services
WHEREAS (insert title of agency) may exercise the power of eminent domain pursuant to (Agency's
charter) (statutes conferring authority) and the Law of the State of Oregon generally, when the
exercise of such power is deemed necessary by the (insert title of agency)'s governing body to
accomplish public purposes for which (insert title of agency) has responsibility;
WHEREAS (insert title of agency) has the responsibility of providing safe transportation routes for
commerce, convenience and to adequately serve the traveling public;
WHEREAS the project or projects known as (insert Project name) have been planned in accordance
with appropriate engineering standards for the construction, maintenance or improvement of said
transportation infrastructure such that property damage is minimized, transportation promoted, travel
safeguarded; and
WHEREAS to accomplish the project or projects set forth above it is necessary to acquire the
interests in the property described in "Exhibit A," attached to this resolution and, by this reference
incorporated herein; now, therefore
BE IT HEREBY RESOLVED by (Agency's Council, Commission, or Board)
1. The foregoing statements of authority and need are, in fact, the case. The project or projects for
which the property is required and is being acquired are necessary in the public interest, and the
same have been planned, designed, located, and will be constructed in a manner which will be
most compatible with the greatest public good and the least private injury;
2. The power of eminent domain is hereby exercised with respect to each of the interests in property
described in Exhibit A. Each is acquired subject to payment of just compensation and subject to
procedural requirements of Oregon law;
3. The (insert title of agency)'s staff and the (Agency's Attorney, Counsel, or District's Counsel (or)
(The Oregon Department of Transportation and the Attorney General) are authorized and
requested to attempt to agree with the owner and other persons in interest as to the
compensation to be paid for each acquisition, and, in the event that no satisfactory agreement
can be reached, to commence and prosecute such condemnation proceedings as may be
necessary to finally determine just compensation or any other issue appropriate to be determined
by a court in connection with the acquisition. This authorization is not intended to expand the
jurisdiction of any court to decide matters determined above or determinable by the (Agency's
Council, Commission, or Board).
4. (insert title of agency) expressly reserves its jurisdiction to determine the necessity or propriety of
any acquisition, its quantity, quality, or locality, and to change or abandon any acquisition.
DATED this day of 20_
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