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HomeMy WebLinkAboutItem 03- IGA OR 126B at 54th Street ODOTAGENDA ITEM SUMMARY Meeting Date: Meeting Type: Staff Contact/Dept.: Staff Phone No: Estimated Time: 6/26/2023 Regular Meeting Amanda Clinton/DPW 541-726-3628 Consent Calendar SPRINGFIELD Council Goals: Maintain and Improve CITY COUNCIL Infrastructure and Facilities ITEM TITLE: INTERGOVERNMENTAL AGREEMENT OR126B AT 54TH STREET (SPRINGFIELD) ACTION Authorize the City Manager to execute the Intergovernmental Agreement (IGA) for REQUESTED: Oregon 126B at 54th Street (Springfield) with the Oregon Department of Transportation (ODOT). ISSUE Main Street is part of the state highway systems under the jurisdiction and control STATEMENT: of the Oregon Transportation Commission (OTC). 54th Street and South 54th Street is part of the City of Springfield street system under the jurisdiction and control of the City. ODOT wishes to improve the intersection and the execution of the IGA is necessary to initiate the construction the process. ATTACHMENTS: 1: IGA with ODOT DISCUSSION/ This project was initiated by ODOT, and this IGA is needed to allow ODOT to use FINANCIAL portions of City right of way to construct left turn lanes on 54th Street and South IMPACT: 54th Street as part of their lane addition, traffic signal rebuild, upgrade of sidewalks and ramps to ADA standards, and illumination enhancement project. They will deliver the project and upon completion, the State shall transfer ownership interests of all 54th Street and South 54th Street rights of way back to the City of Springfield. Project costs are financed through federal and state dollars. The City of Springfield has no obligation to provide funds for this project. Staff recommends Council approve giving the City Manager authority to sign the agreement. Misc. Contracts and Agreements No. 73000-00005553 INTERGOVERNMENTAL AGREEMENT OR -1268 at 54th Street (Springfield) 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" or "ODOT," and the CITY OF SPRINGFIELD, an Oregon municipal corporation, acting by and through its elected officials, hereinafter referred to as "Agency," both herein referred to individually or collectively as "Party" or "Parties." RECITALS 1. By the authority granted in Oregon Revised Statute (ORS) 190.110, state agencies may enter into agreements with units of local government for the performance of any or all functions and activities that a party to the agreement, its officers, or agents have the authority to perform. 2. McKenzie Highway, OR -126B (OR -126B), is a part of the state highway system under the jurisdiction and control of the Oregon Transportation Commission (OTC). 54th Street is a part of the City of Springfield's street system under the jurisdiction and control of Agency. 3. The intersection of OR -126B and 54th Street in the City of Springfield has been shown to have a higher than normal severity of crashes. The Parties wish to improve the safety of the intersection of OR -126B and 54th Street by constructing permissive/protected left turn lanes to provide an exclusive phase for left turns, separating the pedestrian walk phase from the flashing yellow arrow (permissive) left turn phase, and installing lighting for greater visibility. The project will also include the construction of Americans with Disabilities Act (ADA) ramp improvements. 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, the Parties agree to State performing the improvements at the intersection of OR -126B and 54' Street as described in Recital 3, 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. The Project will be financed at an estimated cost of $2,140,000 in federal and state funds. The estimate for the total Project cost is subject to change. State shall be responsible for any nonparticipating costs, and Project costs beyond the estimate. 3. State shall conduct all right of way activities in accordance with the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, as amended, ORS Chapter 35, Federal -Aid Policy Guide, Code of Federal Regulations STIP Key No. 20209 City of Springfield/ODOT Agreement No. 73000-00005553 (CFR) and the ODOT Right of Way Manual, and Title 23 CFR Part 710 and Title 49 CFR Part 24. 4. Upon Project completion, State shall transfer to Agency any ownership interests State may have obtained along Agency's facilities. Method of conveyance will be determined by the Parties at the time of transfer and will be coordinated by the State's Region 2 Right of Way Manager. 5. This Agreement shall become effective on the date all required signatures are obtained and shall remain in effect for the purpose of ongoing maintenance (and power if applicable) responsibilities for the useful life of the facilities constructed as part of the Project. The useful life is defined as twenty (20) calendar years. The Project shall be completed within two (2) calendar years following the date of final execution of this Agreement by both Parties. AGENCY OBLIGATIONS 1. Agency agrees to allow State the use of Agency streets for traffic detouring for Project purposes. 2. Agency grants State the right to enter on Agency right of way for the performance of the Project. 3. Upon Project completion, Agency shall accept any ownership interests State may have obtained along Agency's facilities. Method of conveyance will be determined by the Parties at the time of transfer and will be coordinated by the State's Region 2 Right of Way Manager. 4. Upon Project completion, Agency shall maintain all improvements to 54th Street associated with the Project including, but not limited to, landscaping. 5. Agency shall not enter into any subcontracts for any of the work scheduled under this Agreement without obtaining prior written approval from State. 6. Agency shall comply with all federal, state, and local laws, regulations, executive orders and ordinances applicable to the work under this Agreement, including, without limitation, the provisions of ORS 279C.505, 279C.515, 279C.520, 279C.530 and 2796.270 incorporated herein by reference and made a part hereof. Without limiting the generality of the foregoing, Agency expressly agrees to comply with (i) Title VI of Civil Rights Act of 1964; (ii) Title V and Section 504 of the Rehabilitation Act of 1973; (iii) the Americans with Disabilities Act of 1990 and ORS 659A.142; (iv) all regulations and administrative rules established pursuant to the foregoing laws; and (v) all other applicable requirements of federal and state civil rights and rehabilitation statutes, rules and regulations. 7. Agency shall perform the service under this Agreement as an independent contractor and shall be exclusively responsible for all costs and expenses related to its employment of individuals to perform the work under this Agreement including, but not 2 City of Springfield/ODOT Agreement No. 73000-00005553 limited to, retirement contributions, workers compensation, unemployment taxes, and state and federal income tax withholdings. 8. 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. 9. 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 the State, be indemnified by the contractor and subcontractor from and against any and all Claims. 10.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. 11. 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 specific Agreement for the purpose of making audit, examination, excerpts, and transcripts for a period of six (6) years after final payment (or completion of Project -- if applicable.) Copies of applicable records shall be made available upon request. Payment for costs of copies is reimbursable by State. 12. 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 K City of Springfield/ODOT Agreement No. 73000-00005553 direction or approval of its governing body, commission, board, officers, members or representatives, and to legally bind Agency. 13.Agency's Project Manager for this Project is Brian Barnett, City Traffic Engineer; 201 South 18th Street, Springfield, Oregon 97477, bbarnett@springfield-or.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. STATE OBLIGATIONS 1. State shall work cooperatively with Agency in the planning and design of landscaping improvements to Agency's street system in association with the Project. 2. State certifies, at the time this Agreement is executed, that sufficient funds are available and authorized for expenditure to finance costs of this Agreement within State's current appropriation or limitation of the current biennial budget. 3. State's Project Manager for this Project is Jennifer Hedlind, Project Leader, 2080 Laura Street, Springfield, Oregon 97477, Jennifer. L. Hedlind(a--)odot.oregon.gov, 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. CI City of Springfield/ODOT Agreement No. 73000-00005553 AMERICANS WITH DISABILITIES ACT COMPLIANCE: 1. When the Project scope includes work on sidewalks, curb ramps, or pedestrian - activated signals or triggers an obligation to address curb ramps or pedestrian signals, the Parties shall: i. Utilize ODOT standards to assess and ensure Project compliance with Section 504 of the Rehabilitation Act of 1973 and the Americans with Disabilities Act of 1990 as amended (together, "ADA"), including ensuring that all sidewalks, curb ramps, and pedestrian -activated signals meet current ODOT Highway Design Manual standards; ii. Follow ODOT's processes for design, construction, or alteration of sidewalks, curb ramps, and pedestrian -activated signals, including using the ODOT Highway Design Manual, ODOT Design Exception process, ODOT Standard Drawings, ODOT Construction Specifications, providing a temporary pedestrian accessible route plan and current ODOT Curb Ramp Inspection form; iii. At Project completion, send a completed ODOT Curb Ramp Inspection Form 734-5020 to the address on the form as well as to State's Project Manager for each curb ramp constructed or altered as part of the Project. The completed form is the documentation required to show that each curb ramp meets ODOT standards and is ADA compliant. ODOT's fillable Curb Ramp Inspection Form and instructions are available at the following address: https://www.oregon.gov/ODOT/Engineering/Pages/Accessibility.aspx; and 2. Agency shall ensure that any portions of the Project under Agency's maintenance jurisdiction are maintained in compliance with the ADA throughout the useful life of the Project. This includes, but is not limited to, Agency ensuring that: Pedestrian access is maintained as required by the ADA, ii. Any complaints received by Agency identifying sidewalk, curb ramp, or pedestrian -activated signal safety or access issues are promptly evaluated and addressed, iii. Agency, or abutting property owner, pursuant to local code provisions, performs any repair or removal of obstructions needed to maintain the facility in compliance with the ADA requirements that were in effect at the time the facility was constructed or altered, iv. Any future alteration work on Project or Project features during the useful life of the Project complies with the ADA requirements in effect at the time the future alteration work is performed, and N1 City of Springfield/ODOT Agreement No. 73000-00005553 v. Applicable permitting and regulatory actions are consistent with ADA requirements. 3. Maintenance obligations in this section shall survive termination of this Agreement. GENERAL PROVISIONS 1. This Agreement may be terminated by either Party upon thirty (30) days' notice, in writing and delivered by certified mail or in person. 2. 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 State is prohibited from paying for such work from the planned funding source. 3. Any termination of this Agreement shall not prejudice any rights or obligations accrued to the Parties prior to termination. 4. 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 [l City of Springfield/ODOT Agreement No. 73000-00005553 Party Claim with counsel of its own choosing are conditions precedent to that Party's liability with respect to the Third Party Claim. 5. 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. 6. 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. 7. 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. 8. As federal funds are involved in this Agreement, EXHIBIT B and EXHIBIT C are attached hereto and by this reference made a part hereof, and are hereby certified to by Agency representative. 9. 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 VA City of Springfield/ODOT Agreement No. 73000-00005553 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. 10. 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. 11. 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. 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. This Project is in the 2021-2024 STIP, (Key #20209) that was adopted by the Oregon Transportation Commission on July 15, 2020 (or subsequently by amendment to the STIP). Signature Page to Follow E:3 City of Springfield/ODOT Agreement No. 73000-00005553 CITY OF SPRINGFIELD, by and through its designated officials By Date By Date LEGAL REVIEW APPROVAL (If required in Agency's process) By Kv'6Wu all(raal5l Agency's Counsel Date Agency Contact: Brian Barnett, PE City Traffic Engineer 201 South 18t" Street Springfield, Oregon 97477 bbarnett(cD_springfield-or.gov State Contact: Jennifer Hedlind Project Leader 2080 Laura Street Springfield, Oregon 97477 541-747-1310 Jennifer. L.Hedlind(cD-odot.oregon.gov STATE OF OREGON, by and through its Department of Transportation By Delivery and Operations Division Administrator Date APPROVAL RECOMMENDED By Region 2 Manager Date By Region 2 Project Delivery Manager Date By Region 2 Right of Way and Utilities Manager Date APPROVED AS TO LEGAL SUFFICIENCY By: Katrina L. Brown Assistant Attorney General Date September 8, 2022, via email w7 City of Springfield/ODOT Agreement No. 73000-00005553 EXHIBIT A 10 City of Springfield/ODOT Agreement No. 73000-00005553 For purposes of Exhibits B and C, references to Department shall mean State, references to Contractor shall mean Agency and references to Contract shall mean Agreement. EXHIBIT B CONTRACTOR CERTIFICATION Contractor certifies by signing this Contract that Contractor has not: (a) Employed or retained for a commission, percentage, brokerage, contingency fee or other consideration, any firm or person (other than a bona fide employee working solely for me or the above Contractor) to solicit or secure this Contract, (b) agreed, as an express or implied condition for obtaining this Contract, to employ or retain the services of any firm or person in connection with carrying out the Contract, or (c) paid or agreed to pay, to any firm, organization or person (other than a bona fide employee working solely for me or the above Contractor), any fee, contribution, donation or consideration of any kind for or in connection with, procuring or carrying out the Contract, except as here expressly stated (if any): Contractor further acknowledges that this certificate is to be furnished to the Federal Highway Administration, and is subject to applicable State and Federal laws, both criminal and civil. DEPARTMENT OFFICIAL CERTIFICATION Department official likewise certifies by signing this Contract that Contractor or his/her representative has not been required directly or indirectly as an expression of implied condition in connection with obtaining or carrying out this Contract to: (a) Employ, retain or agree to employ or retain, any firm or person or (b) pay or agree to pay, to any firm, person or organization, any fee, contribution, donation or consideration of any kind except as here expressly stated (if any): Department official further acknowledges this certificate is to be furnished to the Federal Highway Administration, and is subject to applicable State and Federal laws, both criminal and civil. EXHIBIT C Federal Provisions Oregon Department of Transportation CERTIFICATION OF NONINVOLVEMENT IN ANY DEBARMENT AND SUSPENSION Contractor certifies by signing this Contract that to the best of its knowledge and belief, it and its principals: 11 Agency/State Agreement No. Are not presently debarred, suspended, proposed for debarment, declared ineligible or voluntarily excluded from covered transactions by any Federal department or agency; Have not within a three-year period preceding this Contract been convicted of or had a civil judgment rendered against them for commission of fraud or a criminal offense in connection with obtaining, attempting to obtain or performing a public (federal, state or local) transaction or contract under a public transaction; violation of federal or state antitrust statutes or commission of embezzlement, theft, forgery, bribery falsification or destruction of records, making false statements or receiving stolen property; 3. Are not presently indicted for or otherwise criminally or civilly charged by a governmental entity (federal, state or local) with commission of any of the offenses enumerated in paragraph (1)(b) of this certification; and 4. Have not within a three-year period preceding this Contract had one or more public transactions (federal, state or local) terminated for cause or default. Where the Contractor is unable to certify to any of the statements in this certification, such prospective participant shall submit a written explanation to Department. List exceptions. For each exception noted, indicate to whom the exception applies, initiating agency, and dates of action. If additional space is required, attach another page with the following heading: Certification Exceptions continued, Contract Insert. EXCEPTIONS: Exceptions will not necessarily result in denial of award, but will be considered in determining Contractor responsibility. Providing false information may result in criminal prosecution or administrative sanctions. STIP Key No. 20209 The Contractor is advised that by signing this Contract, the Contractor is deemed to have signed this certification. II. INSTRUCTIONS FOR CERTIFICATION REGARDING DEBARMENT, SUSPENSION, AND OTHER RESPONSIBILITY MATTERS— PRIMARY COVERED TRANSACTIONS 1. By signing this Contract, the Contractor is providing the certification set out below. 2. The inability to provide the certification required below will not necessarily result in denial of participation in this covered transaction. The Contractor shall explain why he or she cannot provide the certification set out below. This explanation will be considered in connection with the Department determination to enter into this transaction. Failure to furnish an explanation shall disqualify such person from participation in this transaction. 3. The certification in this clause is a material representation of fact upon which reliance was placed when the Department determined to enter into this transaction. If it is later determined that the Contractor knowingly rendered an erroneous certification, in addition to other remedies available to the Federal Government or the Department may terminate this transaction for cause of default. 4. The Contractor shall provide immediate written notice to the Department if at any time the Contractor learns that its certification was erroneous when submitted or has become erroneous by reason of changed circumstances. The terms "covered transaction", "debarred", "suspended", "ineligible", "lower tier covered transaction", "participant", "person", "primary covered transaction", "principal", and "voluntarily excluded", as used in this clause, have the meanings set out in the Definitions and Coverage sections of the rules implementing Executive Order 12549. You may contact the Department's Program Section (Tel. (503) 986-2710) to which this proposal is being submitted City of Springfield/ODOT Agreement No. 73000-00005553 for assistance in obtaining a copy of those regulations. 6. The Contractor agrees by entering into this Contract that, should the proposed covered transaction be entered into, it shall not knowingly enter into any lower tier covered transactions with a person who is debarred, suspended, declared ineligible or voluntarily excluded from participation in this covered transaction, unless authorized by the Department or agency entering into this transaction. 7. The Contractor further agrees by entering into this Contract that it will include the Addendum to Form FHWA-1273 titled, "Appendix B --Certification Regarding Debarment, Suspension, Ineligibility and Voluntary Exclusion --Lower Tier Covered Transactions", provided by the Department entering into this covered transaction without modification, in all lower tier covered transactions and in all solicitations for lower tier covered transactions. 8. A participant in a covered transaction may rely upon a certification of a prospective participant in a lower tier covered transaction that it is not debarred, suspended, ineligible or voluntarily excluded from the covered transaction, unless it knows that the certification is erroneous. A participant may decide the method and frequency by which it determines the eligibility of its principals. Each participant may, but is not required to, check the Nonprocurement List published by the U. S. General Services Administration. 9. Nothing contained in the foregoing shall be construed to require establishment of a system of records to render in good faith the certification required by this clause. The knowledge and information of a participant is not required to exceed that which is normally possessed by a prudent person in the ordinary course of business dealings. 10. Except for transactions authorized under paragraph 6 of these instructions, if a participant in a covered transaction MCI knowingly enters into a lower tier covered transaction with a person who is suspended, debarred, ineligible or voluntarily excluded from participation in this transaction, in addition to other remedies available to the Federal Government or the Department, the Department may terminate this transaction for cause or default. III. ADDENDUM TO FORM FHWA-1273, REQUIRED CONTRACT PROVISIONS This certification applies to subcontractors, material suppliers, vendors, and other lower tier participants. Appendix B of 49 CFR Part 29 - Appendix B --Certification Regarding Debarment, Suspension, Ineligibility, and Voluntary Exclusion --Lower Tier Covered Transactions Instructions for Certification 1. By signing and submitting this Contract, the prospective lower tier participant is providing the certification set out below. 2. The certification in this clause is a material representation of fact upon which reliance was placed when this transaction was entered into. If it is later determined that the prospective lower tier participant knowingly rendered an erroneous certification, in addition to other remedies available to the Federal Government, the department or agency with which this transaction originated may pursue available remedies, including suspension and/or debarment. 3. The prospective lower tier participant shall provide immediate written notice to the person to which this Contract is submitted if at any time the prospective lower tier participant learns that its certification was erroneous when submitted or has become erroneous by reason of changed circumstances. 4. The terms "covered transaction", "debarred", "suspended", "ineligible", "lower tier covered transaction", "participant", "person", "primary covered City of Springfield/ODOT Agreement No. 73000-00005553 transaction", "principal", "proposal', and prudent person in the ordinary course of "voluntarily excluded", as used in this business dealings. clause, have the meanings set out in the Definitions and Coverage sections of 9. Except for transactions authorized under rules implementing Executive Order paragraph 5 of these instructions, if a 12549. You may contact the person to participant in a covered transaction which this Contract is submitted for knowingly enters into a lower tier assistance in obtaining a copy of those covered transaction with a person who regulations. is suspended, debarred, ineligible or voluntarily excluded from participation in 5. The prospective lower tier participant this transaction, in addition to other agrees by submitting this Contract that, remedies available to the Federal should the proposed covered Government, the department or agency transaction be entered into, it shall not with which this transaction originated knowingly enter into any lower tier may pursue available remedies, covered transaction with a person who including suspension and/or debarment. is debarred, suspended, declared ineligible or voluntarily excluded from Certification Regarding Debarment, participation in this covered transaction, Suspension, Ineligibility, and Voluntary unless authorized by the department or Exclusion --Lower Tier Covered agency with which this transaction Transactions originated. a. The prospective lower tier participant 6. The prospective lower tier participant certifies, by entering into this further agrees by submitting this Contract, that neither it nor its Contract that it will include this clause principals is presently debarred, titled, "Certification Regarding suspended, proposed for Debarment, Suspension, Ineligibility and debarment, declared ineligible or Voluntary Exclusion --Lower Tier voluntarily excluded from Covered Transaction", without participation in this transaction by modification, in all lower tier covered any Federal department or agency. transactions and in all solicitations for lower tier covered transactions. b. Where the prospective lower tier participant is unable to certify to any 7. A participant in a covered transaction of the statements in this certification, may rely upon a certification of a such prospective participant shall prospective participant in a lower tier submit a written explanation to covered transaction that it is not Department. debarred, suspended, ineligible or voluntarily excluded from the covered IV. EMPLOYMENT transaction, unless it knows that the certification is erroneous. A participant 1. Contractor warrants that he has not may decide the method and frequency employed or retained any company or by which it determines the eligibility of person, other than a bona fide employee its principals. Each participant may, but working solely for Contractor, to solicit is not required to, check the or secure this Contract and that he has nonprocurement list. not paid or agreed to pay any company or person, other than a bona fide 8. Nothing contained in the foregoing shall employee working solely for be construed to require establishment of Contractors, any fee, commission, a system of records to render in good percentage, brokerage fee, gifts or any faith the certification required by this other consideration contingent upon or clause. The knowledge and information resulting from the award or making of of a participant is not required to exceed this Contract. For breach or violation of that which is normally possessed by a this warranting, Department shall have the right to annul this Contract without City of Springfield/ODOT Agreement No. 73000-00005553 liability or in its discretion to deduct from the Contract price or consideration or otherwise recover, the full amount of such fee, commission, percentage, brokerage fee, gift or contingent fee. Contractor shall not engage, on a full or part-time basis or other basis, during the period of the Contract, any professional or technical personnel who are or have been at any time during the period of this Contract, in the employ of Department, except regularly retired employees, without written consent of the public employer of such person. 3. Contractor agrees to perform consulting services with that standard of care, skill and diligence normally provided by a professional in the performance of such consulting services on work similar to that hereunder. Department shall be entitled to rely on the accuracy, competence, and completeness of Contractor's services. V. NONDISCRIMINATION During the performance of this Contract, Contractor, for himself, his assignees and successors in interest, hereinafter referred to as Contractor, agrees as follows: Compliance with Regulations. Contractor agrees to comply with Title VI of the Civil Rights Act of 1964, and Section 162(a) of the Federal -Aid Highway Act of 1973 and the Civil Rights Restoration Act of 1987. Contractor shall comply with the regulations of the Department of Transportation relative to nondiscrimination in Federally assisted programs of the Department of Transportation, Title 49, Code of Federal Regulations, Part 21, as they may be amended from time to time (hereinafter referred to as the Regulations), which are incorporated by reference and made a part of this Contract. Contractor, with regard to the work performed after award and prior to completion of the Contract work, shall not discriminate on grounds of race, creed, color, sex or national origin in the selection and retention of subcontractors, including procurement of materials and leases of equipment. Contractor shall not participate either directly or indirectly in the discrimination prohibited by Section 21.5 of the Regulations, including employment practices, when the Contract covers a program set forth in Appendix B of the Regulations. 2. Solicitation for Subcontractors, including Procurement of Materials and Equipment. In all solicitations, either by competitive bidding or negotiations made by Contractor for work to be performed under a subcontract, including procurement of materials and equipment, each potential subcontractor or supplier shall be notified by Contractor of Contractor's obligations under this Contract and regulations relative to nondiscrimination on the grounds of race, creed, color, sex or national origin. 3. Nondiscrimination in Employment (Title VII of the 1964 Civil Rights Act). During the performance of this Contract, Contractor agrees as follows: a. Contractor will not discriminate against any employee or applicant for employment because of race, creed, color, sex or national origin. Contractor will take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, creed, color, sex or national origin. Such action shall include, but not be limited to the following: employment, upgrading, demotion or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. Contractor agrees to post in conspicuous places, available to employees and applicants for employment, notice setting forth the provisions of this nondiscrimination clause. City of Springfield/ODOT Agreement No. 73000-00005553 Contractor will, in all solicitations or advertisements for employees placed by or on behalf of Contractor, state that all qualified applicants will receive consideration for employment without regard to race, creed, color, sex or national origin. 4. Information and Reports. Contractor will provide all information and reports required by the Regulations or orders and instructions issued pursuant thereto, and will permit access to his books, records, accounts, other sources of information, and his facilities as may be determined by Department or FHWA as appropriate, and shall set forth what efforts he has made to obtain the information. 5. Sanctions for Noncompliance. In the event of Contractor's noncompliance with the nondiscrimination provisions of the Contract, Department shall impose such agreement sanctions as it or the FHWA may determine to be appropriate, including, but not limited to: Withholding of payments to Contractor under the agreement until Contractor complies; and/or Cancellation, termination or suspension of the agreement in whole or in part. 6. Incorporation of Provisions. Contractor will include the provisions of paragraphs 1 through 6 of this section in every subcontract, including procurement of materials and leases of equipment, unless exempt from Regulations, orders or instructions issued pursuant thereto. Contractor shall take such action with respect to any subcontractor or procurement as Department or FHWA may direct as a means of enforcing such provisions, including sanctions for noncompliance; provided, however, that in the event Contractor becomes involved in or is threatened with litigation with a subcontractor or supplier as a result of such direction, Department may, at its option, enter into such litigation to protect the interests of Department, and, in addition, Contractor may request Department to enter into such litigation to protect the interests of the State of Oregon. VI. DISADVANTAGED BUSINESS ENTERPRISE (DBE) POLICY In accordance with Title 49, Code of Federal Regulations, Part 26, Contractor shall agree to abide by and take all necessary and reasonable steps to comply with the following statement: DBE POLICY STATEMENT DBE Policy. It is the policy of the United States Department of Transportation (USDOT) to practice nondiscrimination on the basis of race, color, sex and/or national origin in the award and administration of USDOT assist contracts. Consequently, the DBE requirements of 49 CFR 26 apply to this Contract. Required Statement For USDOT Financial Assistance Agreement. If as a condition of assistance the Agency has submitted and the US Department of Transportation has approved a Disadvantaged Business Enterprise Affirmative Action Program which the Agency agrees to carry out, this affirmative action program is incorporated into the financial assistance agreement by reference. DBE Obligations. The Department and its Contractor agree to ensure that Disadvantaged Business Enterprises as defined in 49 CFR 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, Contractor shall take all necessary and reasonable steps in accordance with 49 CFR 26 to ensure that Disadvantaged Business Enterprises have the opportunity to compete for and perform contracts. Neither Department nor its contractors shall discriminate on the basis of race, color, national origin or sex in the award and performance of federally -assisted contracts. The Contractor shall carry out applicable requirements of 49 CFR Part 26 in the award and administration of such contracts. Failure by the Contractor to carry out these City of Springfield/ODOT Agreement No. 73000-00005553 requirements is a material breach of this Contract, which may result in the termination of this Contract or such other remedy as Department deems appropriate. The DBE Policy Statement and Obligations shall be included in all subcontracts entered into under this Contract. Records and Reports. Contractor shall provide monthly documentation to Department that it is subcontracting with or purchasing materials from the DBEs identified to meet Contract goals. Contractor shall notify Department and obtain its written approval before replacing a DBE or making any change in the DBE participation listed. If a DBE is unable to fulfill the original obligation to the Contract, Contractor must demonstrate to Department the Affirmative Action steps taken to replace the DBE with another DBE. Failure to do so will result in withholding payment on those items. The monthly documentation will not be required after the DBE goal commitment is satisfactory to Department. Any DBE participation attained after the DBE goal has been satisfied should be reported to the Departments. DBE Definition. Only firms DBE certified by the State of Oregon, Department of Consumer & Business Services, Office of Minority, Women & Emerging Small Business, may be utilized to satisfy this obligation. CONTRACTOR'S DBE CONTRACT GOAL DBE GOAL 0 % By signing this Contract, Contractor assures that good faith efforts have been made to meet the goal for the DBE participation specified in the Contract for this project as required by ORS 200.045, and 49 CFR 26.53 and 49 CFR, Part 26, Appendix A. VII. LOBBYING The Contractor certifies, by signing this agreement to the best of his or her knowledge and belief, that: 17 No Federal appropriated funds have been paid or will be paid, by or on behalf of the undersigned, to any person for influencing or attempting to influence an officer or employee of any Federal agency, a Member of Congress, an officer or employee of Congress or an employee of a Member of Congress in connection with the awarding of any Federal contract, the making of any Federal grant, the making of any Federal loan, the entering into of any cooperative agreement, and the extension, continuation, renewal, amendment or modification of any Federal contract, grant, loan or cooperative agreement. 2. If any funds other than Federal appropriated funds have been paid or will be paid to any person for influencing or attempting to influence an officer or employee of any Federal agency, a Member of Congress, an officer or employee of Congress or an employee of a Member of Congress in connection with this agreement, the undersigned shall complete and submit Standard Form -LLL, "Disclosure Form to Report Lobbying", in accordance with its instructions. This certification is a material representation of fact upon which reliance was placed when this transaction was made or entered into. Submission of this certification is a prerequisite for making or entering into this transaction imposed by Section 1352, Title 31, U. S. Code. Any person who fails to file the required certification shall be subject to a civil penalty of not less than $10,000 and not more than $100,000 for each such failure. The Contractor also agrees by signing this agreement that he or she shall require that the language of this certification be included in all lower tier subagreements, which exceed $100,000 and that all such subrecipients shall certify and disclose accordingly. FOR INQUIRY CONCERNING DEPARTMENT'S DBE City of Springfield/ODOT Agreement No. 73000-00005553 PROGRAM REQUIREMENT CONTACT OFFICE OF CIVIL RIGHTS AT (503)986-4354. W-01