HomeMy WebLinkAbout2011-250 CMAQ Agrmt - ODOT #27871 Misc. Contracts and Agreements
No. 27871
LOCAL AGENCY AGREEMENT
CONGESTION MITIGATION AND AIR QUALITY PROGRAM
Walker Avenue: Ashland Street to East Main Street
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," both herein referred to individually or collectively as
"Party" or"Parties."
RECITALS
1. Walker Avenue, Ashland Street and East Main Street are parts of the Agency 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.
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, State and Agency agree to fund, design and construct
sidewalks, bicycle lanes and improvements to the rail crossing on Walker Avenue,
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 $666,694, which is subject to change. The CMAQ funds are limited
to $666,694. Eligible costs for the Project will be reimbursed at the full federal share
or until the $666,694 limit is reached. Agency shall be responsible for 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 State obligating the funds for
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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 (FHWA). Any work performed prior to acceptance by
FHWA or outside the scope of work will be considered nonparticipating and paid for
at Agency expense.
4. State considers Agency a subrecipient of the federal funds it receives as
reimbursement under this Agreement. The Catalog of Federal Domestic Assistance
(CFDA) number for this Project is 20.205, title Highway Planning and Construction.
5. Agency shall require its contractor(s) and subcontractor(s) that are not units of local
government as defined in ORS 190.003, if any, to indemnify, defend, save and hold
harmless the State of Oregon, Oregon Transportation Commission and its
members, Department of Transportation and its officers, employees and agents
from and against any and all claims, actions, liabilities, damages, losses, or
expenses, including attorneys' fees, arising from a tort, as now or hereafter defined
in ORS 30.260, caused, or alleged to be caused, in whole or in part, by the negligent
or willful acts or omissions of Agency's contractor or any of the officers, agents,
employees or subcontractors of the contractor ("Claims"). It is the specific intention
of the Parties that State shall, in all instances, except for Claims arising solely from
the negligent or willful acts or omissions of State, be indemnified by the contractor
and subcontractor from and against any and all Claims.
6. Any such indemnification shall also provide that neither Agency's contractor and
subcontractor nor any attorney engaged by Agency's contractor and subcontractor
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's contractor is
prohibited from defending the State of Oregon, or that Agency's contractor 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 claims it may
have against Agency's contractor if the State of Oregon elects to assume its own
defense.
7. 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
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ten (10) calendar years following the date all required signatures are obtained,
whichever is sooner.
8. This Agreement may be terminated by mutual written consent of the Parties.
9. 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.
10.Any termination of this Agreement shall not prejudice any rights or obligations
accrued to the Parties prior to termination.
11.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.
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12.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.
13.Agency certifies and represents that the individual(s) signing this Agreement has
been authorized to enter into and execute this Agreement on behalf of Agency,
under the direction or approval of its governing body, commission, board, officers,
members or representatives, and to legally bind Agency.
14.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.
15.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.
16.State's Project Manager for this Project is Kelli Sparkman, ODOT Region 3 Local
Agency Liaison, 100 Antelope Road, White City, Oregon 97503; (541) 774-6383, or
assigned designee upon individual's absence. Agency's Project Manager shall be
notified in writing of any contact information changes during the term of this
Agreement.
17.Agency's Project Manager for this Agreement is Morgan Wayman, Project Manager,
20 East Main Street, Ashland, OR 97520; waymanm @ashland.or.us; (541) 552-
2414; or assigned designee upon individual's absence. Agency shall notify State in
writing of any contact information changes during the term of this Agreement.
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THE PARTIES, by execution of this Agreement, hereby acknowledge that its signing
representatives have read this Agreement, understand it, and agree to be bound by its
terms and conditions.
This Project is in the 2010-2013 Statewide Transportation Improvement Program, (Key
#17249) that was approved by the Oregon Transportation Commission on December
16, 2010 (or subsequently approved by amendment to the STIP).
City of Ashland, by and through its STATE OF OREGON, by and through
elected officials its P9155l i ent of Transportation
By
High ay Division Administrator
Title 77W� I
Date 16I1�U l/
Date ByAPB/ APPROVAL RECOMMENDED
Title W w��`�- By � 0-
Al CMAQ Program Coordinator
Date Date OCT 18 2011
APPROVED AS TO LEGAL
SUFFIC CY
By A'm-A'L
% 1 Technical Services Manager/Chief
City Attorney Engineer
Date -g/z°�I I Date
Agency Contact By
Jim Olson R ion Manager
Ashland City Engineer
20 East Main Street Date
Ashland, OR 97520
(541) 488-5587 APPROVED AS TO LEGAL
jimo @ashland.or.us SUFITAt NCY
State Contact: By , --
Kelli Sparkman Assistant Attorney General (If over
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Agency/State
Agreement No. 27871
ODOT Region 3 Local Agency Liaison $150,000)
100 Antelope Road
White City, OR 97503 Date Aa
(541) 774-6383
Ke Ili.spa rkman @odot.state.or.us
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Agency/State
Agreement No. 27871
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Agency/State
Agreement No. 27871
ATTACHMENT NO. 1 to Agreement No.27871
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. 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.
4. Indemnification language in the Standards Provisions, Paragraphs 46 and 47, shall be
replaced with the following language:
a. 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.
b. 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
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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.
c. 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.
d. 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.
7. 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.
8. Maintenance responsibilities shall survive any termination of this Agreement.
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ATTACHMENT NO. 2
FEDERAL 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& CONSTRUCTTONENGINEERING
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
Regulations (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.
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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
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: 2 CFR 225, and OMB CIRCULAR NO. A-133, Title 23,
USC, Federal-Aid Highway 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).
STATE OBLIGATIONS
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
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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
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.
12. If federal funds are used, State will specify the Catalog of Federal Domestic Assistance (CFDA)
number in the Agreement. State will also determine and clearly state in the Agreement if recipient
is a subrecipient or vendor, using criteria in Circular A-133.
PROJECT ACTIVITIES
13. 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.
14. 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.
15. State shall prepare contract and bidding documents, advertise for bid proposals, and award all
contracts.
16. 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.
17. 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
18. 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
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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.
19. 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.
20. 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.
21. 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
regulations, which are in effect at the time of disposition. Reimbursement to State and FHWA of
the required proportionate shares of the fair market value may be required.
22. Agency insures that all Project right of way monumentation will be conducted in conformance with
ORS 209.155.
23. 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
24. 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.
25. 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
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contract. Any additional balance of the deposit, based on the actual bid must be
received within forty-five (45) days of receipt of written notification by State of the
final amount due, unless the contract is canceled. Any unnecessary balance of a
cash deposit, based on the actual bid, will be refunded within forty-five (45) days of
receipt by State of the Project sponsor's written request.
c) Pursuant to 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.
26. 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 FHWA will not
participate. If Agency has not repaid any non-participating cost, future allocations of federal funds,
or allocations of State Highway Trust Funds, to 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.
27. 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.
28. 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.
29. 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.
30. 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.
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31. 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 (3) months from the end
of each funding phase as follows: 1) award date of a construction contract for preliminary
engineering (PE) 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 (3) months
from date that costs are incurred. Final billings submitted after the three months shall not be
eligible for reimbursement.
32. The cost records and accounts pertaining to work covered by this Agreement are to be kept
available for inspection by representatives of State and FHWA for a period of six (6) years
following the date of final voucher to FHWA. 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).
33. 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
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).
34.Agency shall maintain all Project documentation in keeping with State and FHWA standards and
specifications. This shall include, but is not limited to, daily work records, quantity documentation,
material invoices and quality documentation, certificates of origin, process control records, test
results, and inspection records to ensure that projects are completed in conformance with
approved plans and specifications.
RAILROADS
35.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 B and
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.
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UTILITIES
36. Agency shall follow State established Statutes, Policies and Procedures when impacts occur to
privately or publicly-owned utilities. Only those utility relocations, which are eligible for federal-aid
participation under, the FAPG, Title 23 CFR 645A, Subpart A and B, shall be included in the total
Project costs; all other utility relocations shall be at the sole expense of Agency, or others. 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 twenty-one (21) weeks prior to bid let date. However, State is
under no obligation to agree to perform said duties.
37. The State utility relocation policy, procedures and forms are available through the appropriate
State's Region Utility Specialist or State Utility Liaison. Agency shall provide copies of all signed
utility notifications, agreements and Utility Certification to the State Utility Liaison.
STANDARDS
38. 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 Highway Design 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 "Oregon Standard
Specifications for Highway Construction".
39. Agency agrees that minimum design standards for non-NHS projects shall be recommended
AASHTO Standards and in accordance with the current "Oregon Bicycle and Pedestrian Plan",
unless otherwise requested by Agency and approved by State.
40. 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".
41. 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.
42. The standard unit of measurement for all aspects of the Project shall be English Units. All Project
documents and products shall be in English. This includes, but is not limited to, right of way,
environmental documents, plans and specifications, and utilities.
GRADE CHANGE LIABILITY
43. 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.
44. 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.
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45. 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
46.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.
47. Notwithstanding the foregoing defense obligations under Paragraph 46, 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
48. 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 FHWA.
WORKERS'COMPENSATION COVERAGE
49. 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. Employers
Liability Insurance with coverage limits of not less than $500,000 must be included. Agency shall
ensure that each of its contractors complies with these requirements.
LOBBYING RESTRICTIONS
50. 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 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
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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, USC 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 36, 37, and 48 are not applicable to any local agency on state highway projects.
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