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HomeMy WebLinkAbout2007-283 CMAQ Agrmt - ODOT Misc. Contracts & Agreements No. 23720 LOCAL AGENCY AGREEMENT CONGESTION MITIGATION AND AIR QUALITY PROGRAM Beach Street: Glenwood Drive - End 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." RECITALS 1. Upper Beach Street is a part of the city street system under the jurisdiction and control of Agency. 2. By the authority granted in 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. 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 and install curb, gutter and sidewalks on 525' of Beach Street, south of Glenwood Drive, hereinafter referred to as "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 $445,782, which is subject to change. The CMAQ funds are limited to $400,000. Eligible costs for the Project will be reimbursed at the full federal share or until the $400,000 limit is reached. Agency shall be responsible for the match for the federal funds and any portion of the Project, which is not covered by federal funding. Agency shall be responsible for determining 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 FHWA. Any work performed prior to acceptance by FHWA will be considered nonparticipating and paid for at Agency expense. The Catalog of Federal Domestic Assistance (CFDA) number for this Project is 20.205. Key No. 15256 Agency/State Agreement No. 23720 4. State considers Agency a sub-recipient of the federal funds under this Agreement. 5. At the beginning 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. 1 A 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. 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. 2 Agency/State Agreement No. 23720 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 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 2006-2009 Statewide Transportation Improvement Program, (Key #15256) that was approved by the Oregon Transportation Commission on August 17, 2005 (or subsequently approved by amendment to the STIP). 3 Agency/State Agreement No. 23720 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 August 2, 2005, the Director, Deputy Director, Highways and Chief Engineer approved Subdelegation Order No.5, in which the Director, Deputy Director, Highways and Chief Engineer delegate authority to the Region Managers to approve and sign intergovernmental agreements over $75,000 up to a maximum of $500,000 when the work is related to a project included in the Statewide Transportation Improvement Program (STIP). CITY OF ASHLAND, by and through its elected offcials B By Title Date Date lQ~ -0r:y Agency Contact: City of Ashland Attn: Paula Brown 20 E Main Street Ashland, OR 97520 STATE OF OREGON, b nd through its Departm nt 0 T rtation /' Manager /U//6k? / I By c;.,.Af~ Region 3 Local Program Project Manager Date 10- t~ - 07 APPRO D AS TO LEy-AL SUFFICIENCY By ..t p( 11 ~_~ Assistant Attorney General Date: /~/v3(~1 4 Misc. Contracts & Agreements No. 23720 ATTACHMENT NO.1 to Agreement No. 23720 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. Agency/State Agreement No. 23720 ATTACHMENT NO. 1A to Agreement No. 23720 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. 23720 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. 23720 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. I/) 0 ...... N c ,.- f'.. ('1 Q) C'0 I E N ~ Q) 'p Q) 0 o,Z <( ~ ',IAPlll!>A 'I I/) ~l~ ...... Hj () en " '- " ...... C II 0 U,l ,. t) U) (j~l Ul <:, () l..l! 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Contracts & Agreements No. 23720 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 10 # (if known): STIP Project 10 #: _ FMIS Project 10 #: _ TIP / TSP Project 10 # (optional): CMAQ Obligation $ (this Fiscal Year): _ Total Project $ (this Fiscal Year): MPO or local jurisdiction: _ Non-Attainment or Maintenance Area check one o Portland Metro Area o Medford/Ashland Metro Area o Klamath Falls Area o Grants Pass Area o La Grande Area o Lakeview Area o o o I/M and Other TCMs o Pedestrian/Bicycle o Shared Ride o Traffic Flow Improvements o Transit o Other / No Category o Oeobligation Please select one of the followinq: This is a new CMAQ project proposal This is a continuing CMAQ project. o o Is this a planning or project development activity? Yes 0 NoD Is this an outreach activity? Yes 0 NoD Is this a TCM in an approved SIP? Yes 0 NoD Is this an Experimental Pilot Project? Yes 0 NoD Is this a Public-Private Partnership? Yes 0 NoD Emissions Benefit Provided bv Proiect: VOC emissions benefit (kg/day): )) Qualitative Analysis? Yes D NoD CO emissions benefit (kg/day): )) Qualitative Analysis? YesD NoD NOx emissions benefit (kg/day): )) Qualitative Analysis? Yes D NoD PM-10 emissions benefit (kg/day): )) Qualitative Analysis? Yes D No D NOTE: Please attach supporting documentation of quantitative analysis or explanation of qualitative analysis method check one main cate or and select a Subcategories: (select one) Subcategories: (select one) Subcategories: (select one) Subcategories: (select one) Subcategories: (select one) Subcategories: (select one) 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, Misc. Contracts & Agreements No. 23720 ATTACHMENT NO.2 STANDARD PROVISIONS JOINT OBLIGATIONS PROJECT ADMINISTRATION 1. State (ODOT) is acting to fulfill its responsibility to the Federal Highway Administration (FHWA) by the administration of this Project, and Agency (i.e. county, city, unit of local government, or other state agency) hereby agrees that State shall have full authority to carry out this administration. If requested by Agency or if deemed necessary by State in order to meet its obligations to FHWA, State will 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 FHWA or State acting on behalf of FHWA 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 FHWA 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 FHWA. 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 Agency/State Agreement No. 23720 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 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 279B.270, incorporated herein by 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 Hiqhway Act; Title 41, Chapter 1, USC 51-58. Anti-Kickback Act; Title 42 USC: Uniform Relocation Assistance and Real Property Acquisition Policy Act of 1970, as amended and provisions of Federal-Aid Policy Guide (FAPG). Sl A lE OBLlGA liONS PROJECT FUNDING REQUEST 10. State shall submit a Project funding request to FHWA 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 FHWA. 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 FHWA 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 FHWA 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 Agency/State Agreement No. 23720 federal reimbursement, shall be released to Agency. The actual cost of services provided by State will be charged to the Project expenditure account(s) and will be included in the total cost of the Project. 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 FHWA 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, FHWA 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.