HomeMy WebLinkAboutPENDING - Local Agency Agreement Twin Creeks Rail CrossingMisc. Contracts and Agreements
No.30321
LOCAL AGENCY AGREEMENT
MULTIMODAL TRANSPORTATION ENHANCE PROGRAM (MTEP)
TWIN CREEKS RAIL CROSSING (CENTRAL POINT)
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 CENTRAL POINT, 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 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.
2. By the authority granted in ORS 810.080 State has the authority to establish marked
pedestrian crosswalks on its highway facilities.
3. By the authority granted in ORS 810.210, State is authorized to determine the character
or type of traffic control devices to be used, and to place or erect them upon state
highways at places where State deems necessary for the safe and expeditious control of
traffic. No traffic control devices shall be erected, maintained, or operated upon any state
highway by any authority other than State, except with its written approval. Traffic signal
work on this Project will conform to the current State standards and specifications.
4. Portions of Rogue Valley Highway (OR 99) are a part of the state highway system under
the jurisdiction and control of the Oregon Transportation Commission (OTC). Twin Creeks
Crossing, Boulder Ridge Drive and portions of Rogue Valley Highway (OR 99) are a part
of the city street system under the jurisdiction and control of Agency.
NOW THEREFORE the premises being in general as stated in the foregoing Recitals, it is
agreed by and between the Parties hereto as follows:
DEFINITIONS
1. "Contract Award" (construction projects) means the issuance of a Notice to Proceed
(NTP) to the construction contractor.
2. "Contract Time" means amount of time for completing the bid item work under the
contract.
3. "Establishment Period" means the time specified in the construction contract to assure
satisfactory establishment and growth of planted materials.
4. "Final Acceptance" means written confirmation by Agency and State that the project has
been completed according to the contract, with the exception of latent defects and
warranty obligations, if any, and has been accepted.
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5. "Final Payment' -the amount of final payment will be the difference between the total
amount due the contractor and the sum of all payments previously made. All prior partial
estimates and payments shall be subject to correction in the final estimate and payment.
6. "Funding Ratio" means the relationship between MTEP funds and Total Project Cost and
Other Funds and the Total Project Cost. This ratio is established at the time the
agreement is executed and does not change during the course of the project. The ratio
governs the obligation of MTEP funds at the time of construction/consultant award or
Project Closeout..
7. "Match" means the minimum amount State or Agency must contribute to match the
federal aid funding portion of the project.
8. "MTEP" means Multimodal Transportation Enhance Program and may be funded by a
combination of federal and state funds.
9. "Obligation" means Federal Highway Administration (FHWA) approval that allows a
specific phase of a project to commence with spending that can be reimbursed with
federal funds.
10."Other Funds" means other funding required to complete the project including but not
limited to state, federal, and agency funds.
11."Project Completion" (construction projects) means Final Acceptance of the project, Final
Payment to the contractor has been made by the State and project documentation is
completed per the ODOT Construction Manual.
12."Project Overruns" means the final cost estimate at contract award exceeds the estimated
Total Project Cost estimate in this Agreement, or the final actual project costs exceeds the
final cost estimate at contract award.
13."Project Underrun" means the final cost estimate at Contract Award is below the
estimated Total Project Cost in this Agreement, or the final actual project costs are below
the final cost estimate at contract award.
14."Project Closeout" means project is ready to close as there are no more expenditures
associated with project.
15."Second Notification" means written acknowledgment by the Engineer of the end of
Contract Time in accordance with ODOT Standard Specification 000180.50(g)."Third
Notification" means written acknowledgment by the Engineer, subject to Final
Acceptance, that as of the date of the notification the Contractor has completed the
Project according to the Contract, including without limitation completion of all minor
corrective work, equipment and plant removal, site clean-up, and submittal of all
certifications, bills, forms and documents required under the Contract.
16."Total Project Cost' means the estimated amount as shown in this agreement. This
amount will include MTEP funds, local matching funds, and Other Funds as required to
complete the project as stated in this agreement.
Agency/State
Agreement No. 30321
TERMS OF AGREEMENT
1. Under such authority, Agency and State agree to fund, design and construct a new access
route into the Twin Creeks development from OR 99, hereinafter referred to as 'Project."
The location of the Project is as shown on the sketch map attached hereto, marked "Exhibit
A," and by this reference made a part hereof.
2. The Project shall be conducted as a part of the Multimodal Transportation Enhance
Program (MTEP) with funds provided under Title 23, United States Code and may include a
combination of federal and state funds. The Total Project Cost is estimated at $3,457,515,
which is subject to change. MTEP federal and state funding for this Project shall be limited
to $2,670,000. Agency shall be responsible for all remaining costs, including the 10.27
percent match for all MTEP eligible costs, any non -participating costs, and all costs in
excess of the available federal or state funds.
3. The Funding Ratio for this Project is 77% of MTEP funds to 23% Agency funds and
applies to Project Underruns. The Funding Ratio does not apply in the case of Project
Overruns.
4. If, at the time of Contract Award or Project Closeout, the Project Underruns the estimated
Total Project Cost in this Agreement, MTEP funding and Other Funds will be obligated
proportionally based on the Funding Ratio. Any unused MTEP funds, will be retained by
State, and will not be available for use by Agency for this Agreement or any other
projects.
5. Project Overruns which occur at the time of Contract Award, or at the time of Project
Closeout is the responsibility of the Agency.
6. Project decisions regarding design standards, design exceptions, utility relocation
expenses, right of way needs, preliminary engineering charges, construction engineering
charges, and Contract Change Orders as applicable shall be mutually agreed upon
between Agency and State, as these decisions may impact the Total Project Cost.
However, State may award a construction contract at ten (10)% over engineer estimate
without prior approval of Agency.
7. The scope, schedule, progress report requirements, and Project Change Request process
are described in Exhibit B, attached hereto and by this reference made a part hereof.
Agency agrees to the conditions set forth in Exhibit B.
7. State will submit the requests for federal funding to Federal Highway Administration
(FHWA). The federal funding for this Project is contingent upon approval of each funding
request by FHWA. Any work performed prior to acceptance by FHWA or outside the scope
of work will be considered non -participating and paid for at Agency expense.
8. State considers Agency a subrecipient of the federal funds it receives as reimbursement
under this Agreement. The Catalog of Federal Domestic Assistance (CFDA) number and
title for this Project is 20.205, Highway Planning and Construction.
9. The term of this Agreement shall begin on the date ail required signatures are obtained and
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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.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.
11.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 any time 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.
12. This Agreement may be terminated by mutual written consent of both Parties.
13. 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.
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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.
14.Any termination of this Agreement shall not prejudice any rights or obligations accrued to
the Parties prior to termination.
Information required by 2 CFR 200.331(a), except for (xiii) Indirect cost rate, shall be
contained in the USDOT FHWA Federal Aid Project Agreement for this Project, a copy of
which shall be provided by ODOT to Agency with the Notice to Proceed.
The indirect cost rate for this project at the time the agreement is written is Zero percent.
15. 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.
16.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.
17. State and Agency 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.
18.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.
19.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.
20. This Agreement and attached exhibits constitute the entire agreement between the Parties
on the subject matter hereof. In the event of conflict, the body of this Agreement and the
attached Exhibits will control over Project application and documents provided by Agency to
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Agency/State
Agreement No. 30321
State. 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.
21. State's Contact for this Agreement is Kelli Sparkman, 100 Antelope Rd, White City, OR
97503-1674, (541) 774-6383, kelli.sparkman@odot.state.or.us or assigned designee upon
individual's absence. State shall notify the other Party in writing of any contact information
changes during the term of this Agreement.
22.Agency's Contact for this Project is Matt Samitore, Public Works Director, 140 S. Third
Street, Central Point, OR 97502, (541) 423-1017, Matt.Samitore@centralpointoregon.gov
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.
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.
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Agency/State
Agreement No. 30321
CITY OF CENTRAL POINT, by and
through its elected officials
By
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APPROVED AS TO LEGAL
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Aaencv Contact:
Matt Samitore
Public Works Director
140 S. Third Street
Central Point,OR 97502
(541) 423-1017
Maft.Samitore@centralpointoregon.gov
State Contact:
Kalil Sparkman
100 Antelope Rd
White City,OR 97503-1674
541.774.6363
kelli.sparkman@odbt.state.or.us
STATE OF OREGON, by and through
its Department of Transportation
By
Highway Division Administrator
Date
APPROVAL RECOMMENDED
By
Region 3 Manager
Date
APPROVED AS TO LEGAL
SUFFICIENCY
By
Assistant Attorney General
Date.
Agency/State
Agreement No. 30321
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EXHIBIT A — Project Location Map
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ENHANCE
Agency/State
Agreement No. 30321
EXHIBIT B
Project Cost Estimate, Progress Reports and Project Change Request Process
Agreement No. 30321
Key Number: 18972
Project Name: TWIN CREEKS RAIL CROSSING (CENTRAL POINT)
1. Proiect Description
The Project will construct the following improvements:
A. A new roadway of approximately 80 LF on Twin Creeks Crossing between the
railroad right of way and OR 99 consisting of four travel lanes, sidewalks and
bike lanes and approximately 160 LF of paving and sidewalks on Twin Creeks
Crossing between the railroad right of way and Boulder Ridge Drive.
B. A new at grade rail crossing on Twin Creeks Crossing.
C. A new signalized intersection at Twin Creeks Crossing and OR 99.
D. Approximately 790 LF of roadway and sidewalk improvements along OR 99
including a sidewalk crossing of Griffin Creek.
2. This Project is subject to progress reporting and project change process as stated
below.
3. Monthlv Proaress Reoorts IMPRI - Agency shall submit monthly progress reports
using MPR Form 734-2862, incorporated by reference and made a part of this
Agreement. The Monthly Progress Report is due by the 5th day of each month,
starting the first month after execution of this Agreement, and continuing through the
first month after State issues Project Acceptance (Second Note) for the Project's
construction contract.
The fillable MPR form and instructions are available at the following address:
httD://www.oreaon.aov/ODOTITD/AT/Paaes/Forms ADolications.asox
4. Proiect Milestones — The Parties agree that the dates shown in Table 1 constitute
the intended schedule for advancing and completing the Project. Project Milestones
may only be changed through amendment of this Agreement, after obtaining an
approved Project Change Request.
Table 1: Project Milestones — Construction Project
Milestone Description
101
Completion
Date
Agency/State
Agreement No. 30321
Obligation (Federal Authorization) of federal funds for the 9/30/2015
Preliminary Engineering phase of the Project
2 Obligation (Federal Authorization) of federal funds for the) 3/31/2016
Right of Way phase of the Project
3 Obligation (Federal Authorization) of federal funds for the 9/30/2016
Construction phase of the Project
5. Requirements for Construction Proiects
a. Second Notification —Upon completion of on-site work Second Notification shall
be issued. Second Notification is further defined in the Definitions Section of this
Agreement. The anticipated and actual date for issuance of Second Notification
shall be reported in the required monthly report as described in paragraph 3,
above.
b. Third Notification — Issuance of Third Notification must be received within 120
days from the issuance of Second Notification as stated above with the exception
of any Establishment Period noted in the Construction Contract or any remaining
responsibilities of the Contractor. If Third notification is not issued within the
required timeframe, Consequences for Non -Performance, paragraph 7 below
may apply.
S. Proiect Chanae Reauest (PCR) Process - Agency must obtain approval from
State's Contact for changes to the Project's scope, schedule, or budget as specified
in paragraphs 6a, 6b and 6c, below. Agency shall be fully responsible for all costs
that occur outside the established Project scope, schedule or budget and prior to an
approved PCR. Amendments to this Agreement are required for all approved PCRs.
a. Scope - A PCR is required for any significant change or reduction in the scope of
work described in the Project Description (Paragraph 1 of this Exhibit).
b. Schedule— A PCR is required if Agency or State's Contact anticipate that any
Project Milestone will be delayed by more than ninety (90) days, and also for any
change in schedule that will require amendment of the Statewide Transportation
Improvement Program (STIP).
c. Budget — Total Project Cost and approved funds for the Project are controlled by
Terms of Agreement, paragraph 2 of this Agreement.
7. PCR Form - Agency must submit all change requests using PCR Form 734-2936,
attached by reference and made a part of this Agreement. The PCR Form is due no
later than thirty (30) days after the need for change becomes known to Agency. The
PCR shall explain what change is being requested, the reasons for the change, and
any efforts to mitigate the change. A Project Change Request may be rejected at the
discretion State's Area Manager.
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The fillable PCR form and its instructions are available at the following web site:
htta://www.orecion.ciov/ODOT/TD/AT/Pages/Forms AoDlications.asox
8. Consequence for Non -Performance - If Agency fails to fulfill its obligations in
paragraphs No. 3 through No. 7 above, or does not assist in advancing the Project
or perform tasks that the Agency is responsible for under the Project Milestones,
State's course of action through the duration of Agency's default may include: (a)
restricting Agency consideration for future funds awarded through State's managed
funding programs, (b) withdrawing unused Project funds, and (c) terminating this
Agreement as stated in Terms of Agreement, Paragraphs No. 14a and 14b of this
Agreement. State may also choose to invoice Agency for expenses incurred by
State for staff time to assist in completion of the final Project documentation and
issuance of Third Notification.
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Agreement No. 30321
ATTACHMENT NO. 1 to Agreement No. 30321
SPECIAL PROVISIONS
Agency, or the consultant, shall conduct the necessary field surveys, environmental
studies, traffic investigations, foundation explorations, hydraulic studies, assist State
with acquisition of necessary right of way and easements; obtain all required permits
and arrange for all utility relocations/adjustments.
2. Upon State's award of the construction contract, Agency, or the consultant, shall be
responsible for all required materials testing and quality documentation; and prepare
necessary documentation with State -qualified personnel, to allow State to make all
contractor payments. Contract administration, construction engineering and
inspection will follow the most current version of the ODOT Construction Manual and
the ODOT Inspector's Manual.
3. Agency guarantees the availability of Agency funding in an amount required to fully
fund Agency's share of the Project.
4. State may make available the Region'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 done by the Consultant and reimburse State for payment of any
Consultant costs that are not eligible as MTEP participating costs or that are not
included as part of the total cost of the Project.
5. State will perform work throughout the duration of the Project and shall provide a
preliminary estimate of State costs for this work. Prior to the start of each Project
phase State shall provide an updated estimate of State costs for that phase. Such
phases generally consist of Preliminary Engineering, Right of Way, Utility, and
Construction. Agency understands that State's costs are estimates only and agrees
to reimburse State for actual cost incurred per of this Agreement.
6. State and Agency agree that the useful life of this Project is defined as 20 years.
7. Agency shall obtain a miscellaneous permit to occupy State right of way through the
State District 8 Office prior to the commencement of construction.
State grants authority to Agency to enter upon State right of way for the construction
of this Project as provided for in miscellaneous permit to be issued by State District 8
Office.
Agency grants State the right to enter onto Agency right of way for the performance
of duties as set forth in this Agreement.
10. If Agency fails to meet the requirements of this Agreement or the underlying federal
regulations, State may withhold the Agency's proportional share of Highway Fund
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Agency/State
Agreement No. 30321
distribution necessary to reimburse State for costs incurred by such Agency breach.
Agency will be ineligible to receive or apply for any Title 23, United States Code
funds until State receives full reimbursement of the costs incurred.
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ATTACHMENT NO. 2
FEDERAL STANDARD PROVISIONS
PROJECT ADMINISTRATION
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 act for Agency in other matters pertaining to the Project. Prior to taking such action,
State will confer with Agency concerning actions necessary to meet federal obligations. 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 person in responsible charge "liaison" 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.
3. Non -certified agencies must contract with State or a State certified local public agency to secure
services to perform plans, specifications and estimates (PS&E), construction contract
advertisement, bid, award, contractor payments and contract administration. Non -certified
agencies may use a State -approved consultant to perform preliminary engineering, and
construction engineering services.
PROJECT FUNDING REQUEST
4. State shall submit a separate written Project funding request to FHWA requesting approval of
federal -aid participation for each project phase including a) Program Development (Planning),
b) Preliminary Engineering (National Environmental Policy Act - NEPA, Permitting and Project
Design), c) Right of Way Acquisition, d) Utilities, and e) Construction (Construction Advertising,
Bid and Award). Any work performed prior to FHWA's approval of each funding request will be
considered nonparticipating and paid for at Agency expense. Agency shall not proceed on any
activity in which federal -aid participation is desired until such written approval for each
corresponding phase is obtained by State. State shall notify Agency in writing when authorization
to proceed has been received from FHWA. All work and records of such work shall be in
conformance with FHWA rules and regulations.
FINANCE
5. 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 for the federal funds and any portion of the Project, which is not covered by federal
funding, unless otherwise agreed to and specified in the intergovernmental Agreement (Project
Agreement). Agency must obtain written approval from State to use in-kind contributions rather
than cash to satisfy all or part of the matching funds requirement. If federal funds are used, State
will specify the Catalog of Federal Domestic Assistance (CFDA) number in the Project Agreement.
State will also determine and clearly state in the Project Agreement if recipient is a subrecipient or
vendor, using criteria in 2 CFR 200.330,
6. 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
STDPRO-2015.doc
Rev. 05-154-2015 14
federal funds. Agency shall pay one hundred (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 Agency may be withheld to pay the
non -participating costs. If State approves processes, procedures, or contract administration
outside the Local Agency Guidelines Manual that result in items being declared non -participating
by FHWA, such items deemed non -participating will be negotiated between Agency and State.
Agency agrees that 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
by the Parties.
8. 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 one hundred ten (110) percent of
Agency's share of the engineer's estimate and shall be received prior to award of
the construction contract. Any additional balance of the deposit, based on the
actual bid must be received within forty-five (45) days of receipt of written
notification by State of the final amount due, unless the contract is cancelled. Any
balance of a cash deposit in excess of amount needed, 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 Oregon Revised Statutes (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 State's Active Transportation Section, Funding and
Program Services Unit, or 2) an Irrevocable Letter of Credit issued by a local bank
in the name of State, or 3) cash.
9 If Agency makes a written request for the cancellation of a federal -aid project; Agency shall bear
one hundred (100) percent of all costs incurred as of the date of cancellation. If State was the sole
cause of the cancellation, State shall bear one hundred (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 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.
10. Agency shall follow the requirements stated in the Single Audit Act. Agencies expending
$500,000 or more in Federal funds (from all sources) in its fiscal year beginning prior to
December 26, 2014, shall have a single organization -wide audit conducted in accordance with the
Single Audit Act of 1984, PL 98-502 as amended by PL 104-156 and subject to the requirements
of 49 CFR parts 18 and 19. Agencies expending $750,000 or more in federal funds (from all
sources) in a fiscal year beginning on or after December 26, 2014 shall have a single
organization -wide audit conducted in accordance with the provisions of 2 CFR part 200, subpart F.
Agencies expending less than $500,000 in Federal funds in a fiscal year beginning prior to
December 26, 2014, or less than $750,000 in a fiscal year beginning on or after that date, is
exempt from Federal audit requirements for that year. Records must be available for review or
STDPRO-2015 doc
Rev 05-154-2015 15
audit by appropriate officials based on the records retention period identified in the Project
Agreement. The cost of this audit can be partially prorated to the federal program.
11. 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.
12. Agency shall present invoices for one hundred (100) percent of actual costs incurred by Agency
on behalf of the Project directly to State's Liaison for review, approval and reimbursement to
Agency Costs will be reimbursed consistent with federal funding provisions and the Project
Agreement. Such invoices shall identify the Project by the name of the Project Agreement,
reference the Project Agreement number, and shall itemize and explain all expenses for which
reimbursement is claimed. Invoices shall be presented for periods of not less than one-month
duration, based on actual expenses to date. All invoices received from Agency must be approved
by State's Liaison prior to payment. Agency's actual costs eligible for federal -aid or State
participation shall be those allowable under the provisions of the Federal -Aid Policy Guide
(FAPG), Title 23 CFR parts 1.11, 140 and 710. Final invoices shall be submitted to State for
processing within forty-five (45) days from the end of each funding phase as follows: a) preliminary
engineering, which ends at the award date of construction b) last payment for right of way
acquisition and c) contract completion for construction. Partial billing (progress payment) shall be
submitted to State within forty-five (45) days from date that costs are incurred. Invoices submitted
after 45 days may not be eligible for reimbursement by FHWA. 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 the Project Agreement for the purpose of making audit,
examination, excerpts, and transcripts for a period ending on the later of six (6) years following the
date of final voucher to FHWA or after resolution of any disputes under the Project
Agreement. 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 ((2 CFR
200.333(c)).
13. Agency shall, upon State's written request for
part 630.112(c) 1 and 2, as directed by FHWA,
Agency if any of the following events occur:
reimbursement in accordance with Title 23, CFR
reimburse State for federal -aid funds distributed to
a) Right of way acquisition is not undertaken or actual construction is not started by
the close of the twentieth federal fiscal year following the federal fiscal year in
which the federal -aid funds were authorized for right of way acquisition. Agency
may submit a written request to State's Liaison for a time extension beyond the
twenty (20) year limit with no repayment of federal funds and State will forward the
request to FHWA. FHWA may approve this request if it is considered reasonable.
b) 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 federal fiscal year
following the federal fiscal year in which the federal -aid funds were authorized
Agency may submit a written request to State's Liaison for a time extension
beyond the ten (10) year limit with no repayment of federal funds and State will
forward the request to FHWA. FHWA may approve this request if it is considered
reasonable.
14. 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
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results, and inspection records to ensure that the Project is completed in conformance with
approved plans and specifications.
15. State shall submit all claims for federal -aid participation to FHWA in the normal manner and
compile accurate cost accounting records. State shall pay all reimbursable costs of the Project.
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 one hundred (100) percent of the final total
actual cost. Any portion of deposits made in excess of the final total costs of the 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.
STANDARDS
16. Agency agrees that minimum design standards on all local agency jurisdictional roadway or street
projects on the National Highway System (NHS) and projects on the non -NHS shall be the
American Association of State Highway and Transportation Officials (AASHTO) standards and be
in accordance with State's Oregon Bicycle & Pedestrian Design Guide (current version). Agency
shall use either AASHTO's A Policy on Geometric Design of Highways and Streets (current
version) or State's Resurfacing, Restoration and Rehabilitation (3R) design standards for 3R
projects. Agency may use AASHTO for vertical clearance requirements on Agency's jurisdictional
roadways or streets.
17. Agency agrees that if the Project is on the Oregon State Highway System or State-owned facility,
that design standards shall be in compliance with standards specified in the current ODOT
Highway Design Manual and related references. Construction plans for such projects shall be in
conformance with standard practices of State and all specifications shall be in substantial
compliance with the most current Oregon Standard Specifications for Highway Construction and
current Contract Plans Development Guide.
18. Agency agrees that for all projects on the Oregon State Highway System or State-owned facility
any design element that does not meet ODOT Highway Design Manual design standards must be
justified and documented by means of a design exception. Agency further agrees that for all
projects on the NHS, regardless of funding source; any design element that does not meet
AASHTO standards must be justified and documented by means of a design exception. State
shall review any design exceptions on the Oregon State Highway System and retains authority for
their approval. FHWA shall review any design exceptions for projects subject to Focused Federal
Oversight and retains authority for their approval.
19. Agency agrees all traffic control devices and traffic management plans shall meet the
requirements of the current edition of the Manual on Uniform Traffic Control Devices and Oregon
Supplement as adopted in Oregon Administrative Rule (OAR) 734-020-0005. Agency must obtain
the approval of the State Traffic Engineer prior to the design and construction of any traffic signal,
or illumination to be installed on a state highway pursuant to OAR 734-020-0430
20. 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.
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PRELIMINARY & CONSTRUCTION ENGINEERING
21. Preliminary engineering and construction engineering may be performed by either a) State,
b) Agency, c) State -approved consultant, or d) certified agency. Engineering work will be
monitored by State or certified agency to ensure conformance with FHWA rules and regulations.
Project plans, specifications and cost estimates shall be performed by either a) State, b) State -
approved consultant or c) certified agency. State shall review and approve Project plans,
specifications and cost estimates. State shall, at project expense, review, process and approve, or
submit for approval to the federal regulators, all environmental statements. State or certified
agency shall, if they prepare any of the documents identified in this paragraph, offer Agency the
opportunity to review and approve the documents prior to advertising for bids.
22. Agency may request State's two-tiered consultant selection process as allowed by OAR 137-048-
0260 to perform architectural, engineering, photogrammetry, transportation planning, land
surveying and related services (A&E Services) as needed for federal -aid transportation projects.
Use of the State's processes is required to ensure federal reimbursement. State will award and
execute the contracts. State's personal services contracting process and resulting contract
document will follow Title 23 CFR part 172, 2 CFR part 1201, ORS 279A.055, 279C.110,
279C.125, OAR 137-048-0130, OAR 137-048-0220(4) 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. No
reimbursement shall be made using federal -aid funds for any costs incurred by Agency or the
consultant prior to receiving authorization from State to proceed.
23. 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.
24. State or certified agency shall prepare construction contract and bidding documents, advertise for
bid proposals, and award all construction contracts.
25. Upon State's or certified agency's award of a construction contract, State or certified agency shall
perform quality assurance and independent assurance testing in accordance with the FHWA-
approved Quality Assurance Program found in State's Manual of Field Test Procedures, 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.
26. State shall, as a Project expense, assign a liaison to provide Project monitoring as needed
throughout all phases of Project activities (preliminary engineering, right-of-way acquisition, and
construction). State's liaison shall process reimbursement for federal participation costs.
REQUIRED STATEMENT FOR United States Department of Transportation (USDOT)
FINANCIAL ASSISTANCE AGREEMENT
27. By signing the Federal -Aid Agreement to which these Federal Standard Provisions are attached,
Agency agrees to adopt State's DBE Program Plan, available at
htto://www.oreaon.oov/ODOT/CS/CIVILRIGHTS/oases/sbe/dbe/dbe oroaram.asox#olan. Agency
shall not discriminate on the basis of race, color, national origin, or sex in the award and
performance of any USDOT-assisted contract or in the administration of its DBE program or the
requirements of 49 CFR part 26. Agency agrees to take all necessary and reasonable steps under
49 CFR part 26 to ensure nondiscrimination in the award and administration of USDOT-assisted
contracts. State's DBE program, as required by 49 CFR part 26 and as approved by USDOT, is
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incorporated by reference in this Project Agreement. Implementation of this program is a legal
obligation and failure to carry out its terms shall be treated as a violation of this Project
Agreement. Upon notification to the recipient of its failure to carry out its approved program, the
USDOT may impose sanctions as provided for under part 26 and may, in appropriate cases, refer
the matter for enforcement under 18 United States Code (USC) 1001 and/or the Program Fraud
Civil Remedies Act of 1986 (31 USC 3801 et seq.).
Disadvantaged Business Enterprises (DBE) Obligations
28. State and Agency agree to incorporate by reference the requirements of 49 CFR part 26 and
State's DBE Program Plan, as required by 49 CFR part 26 and as approved by USDOT, into all
contracts entered into under this Project Agreement. The following required DBE assurance shall
be included in all contracts:
"The contractor or subcontractor shall not discriminate on the basis of race, color, national
origin, or sex in the performance of this contract. The contractor shall carry out applicable
requirements of Title 49 CFR part 26 in the award and administration of federal -aid
contracts. Failure by the contractor to carry out these requirements is a material breach of
this contract, which may result in the termination of this contract or such other remedy as
Agency deems appropriate. Each subcontract the contractor signs with a subcontractor must
include the assurance in this paragraph (see 49 CFR 26.13(b))."
29. 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.
30. 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 27913.270,
incorporated herein by reference and made a part hereof; Title 23 CFR parts 1.11, 140, 635, 710,
and 771; Title 49 CFR parts 24 and 26; 2 CFR 1201, 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, the provisions of the FAPG and FHWA
Contract Administration Core Curriculum Participants Manual & Reference Guide. State and
Agency agree that FHWA-1273
Required Contract Provisions shall be included in all contracts and subcontracts verbatim and not
by reference.
RIGHT OF WAY
31. Agency and the consultant, if any, agree that right of way activities shall be in accordance with the
Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, as amended,
ORS Chapter 35, FAPG, CFR, and the ODOT Right of Way Manual, Title 23 CFR part 710 and
Title 49 CFR part 24. State, at Project expense, shall review all right of way activities engaged in
by Agency to ensure compliance with all laws and regulations.
32. State is responsible for proper acquisition of the necessary right of way and easements for
construction and maintenance of projects. Agency may perform acquisition of the necessary right
of way and easements for construction and maintenance of the Project provided Agency or the
consultant are qualified to do such work, as required by the ODOT Right of Way Manual, and
Agency has obtained prior approval from State's Region Right of Way office to do such work.
33. 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
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and activities to be accomplished by each Party. If the Project has the potential of needing right of
way, to ensure compliance in the event that right of way is unexpectedly needed, a right of way
services agreement will be required. State, at Project expense, shall be responsible for requesting
the obligation of project funding from FHWA. State, at Project expense, shall be responsible for
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 State's Liaison, who will
forward the request to State's Region Right of Way office on all projects. Agency must receive
written authorization to proceed from State's Right of Way Section prior to beginning right of way
activities. All projects must have right of way certification coordinated through State's Region Right
of Way office to declare compliance and project readiness for construction (even for projects
where no federal funds were used for right of way, but federal funds were used elsewhere on a
project). Agency shall contact State's Liaison, who will contact State's Region Right of Way office
for additional information or clarification on behalf of Agency.
34. Agency agrees that 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.
35. Agency ensures that all project right of way monumentation will be conducted in conformance with
ORS 209.155,
36. State and Agency grants each other authority to enter onto the other's right of way for the
performance of non -construction activities such as surveying and inspection of the Project.
RAILROADS
37. Agency shall follow State established policy and procedures when impacts occur on railroad
property. The policy and procedures are available through the State's Liaison, who will contact
State's Railroad Liaison on behalf of Agency. Only those costs allowable under Title 23 CFR part
140 subpart I, and Title 23 part 646 subpart B 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 and at Project expense, to provide railroad coordination and negotiations.
However, State is under no obligation to agree to perform said duties.
UTILITIES
38. Agency shall follow State established statutes, policies and procedures when impacts occur to
privately or publicly -owned utilities. Policy, procedures and forms are available through the State
Utility Liaison or State's Liaison. Agency shall provide copies of all signed utility notifications,
agreements and Utility Certification to the State Utility Liaison. Only those utility relocations, which
are eligible for reimbursement under the FAPG, Title 23 CFR part 645 subparts 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. Agency may send a written request to State, at Project expense, to arrange for
utility relocations/adjustments lying within Agency jurisdiction 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. Agency shall not perform any utility work on state highway right of
way without first receiving written authorization from State.
GRADE CHANGE LIABILITY
39. 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.
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40 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.
41. Agency, if a City, by execution of the Project 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 Project Agreement.
MAINTENANCE RESPONSIBILITIES
42. Agency shall, at its own expense, maintain operate, and provide power as needed upon Project
completion at a minimum level that is consistent with normal depreciation and/or service demand
and throughout the useful life of the Project. The useful life of the Project is defined in the Special
Provisions. State may conduct periodic inspections during the life of the Project to verify that the
Project is properly maintained and continues to serve the purpose for which federal funds were
provided. Maintenance and power responsibilities shall survive any termination of the Project
Agreement. In the event the Project will include or affect a state highway, this provision does not
address maintenance of that state highway.
CONTRIBUTION
43. 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.
44. 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.
45. 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
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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. 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.
ALTERNATIVE DISPUTE RESOLUTION
46. The Parties shall attempt in good faith to resolve any dispute arising out of this Project 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.
WORKERS' COMPENSATION COVERAGE
47. All employers, including Agency, that employ subject workers who work under this Project
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 five hundred thousand
($500,000) must be included. Agency shall ensure that each of its contractors complies with these
requirements.
LOBBYING RESTRICTIONS — pursuant to Form FHWA-1273, Required Contract Provisions
48. Agency certifies by signing the Project 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
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 one hundred thousand dollars ($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.
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e) Any person who fails to file the required certification shall be subject to a civil
penalty of not less than ten thousand dollars ($10,000) and not more than one
hundred thousand dollars ($100,000) for each such failure.
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