HomeMy WebLinkAboutItem 08 Franklin Blvd Redevelopment Project NEPA IGA with ODOT AGENDA ITEM SUMMARY Meeting Date: 2/6/2012
Meeting Type:Regular Meeting
Staff Contact/Dept.: Tom Boyatt, Public
Works
Staff Phone No: 541-744-3373
Estimated Time: 10 minutes
S P R I N G F I E L D
C I T Y C O U N C I L
Council Goals: Maintain and Improve
Infrastructure and
Facilities
ITEM TITLE: FRANKLIN BOULEVARD REDEVELOPMENT PROJECT NATIONAL
ENVIRONMENTAL POLICY ACT (NEPA) INTERGOVERNMENTAL
AGREEMENT WITH OREGON DEPARTMENT OF TRANSPORTATION
ACTION
REQUESTED:
Approve or reject a motion to authorize and direct the City Manager to execute the
LOCAL AGENCY AGREEMENT SURFACE TRANSPORTATION PROGRAM
– URBAN Franklin Boulevard Redevelopment Project City of Springfield
Intergovernmental Agreement (IGA) with the Oregon Department of
Transportation (ODOT) on behalf of the City.
ISSUE
STATEMENT:
City has identified $1.2 million to launch the required NEPA documentation for the
Franklin reconstruction project. Staff will provide Council with the details of the
IGA to procure consulted services to complete the Environmental Assessment.
ATTACHMENTS: 1. Draft Agreement dated January 27, 2012
DISCUSSION/
FINANCIAL
IMPACT:
The City has secured $1,200,000 for the Franklin Blvd. Project Environmental
Assessment (EA). The EA is a federal requirement that must be developed and
approved before City can undertake improvements to Franklin Boulevard as
envisioned in the 2009 Franklin Boulevard Study and the draft Glenwood
Refinement Plan. A completed EA is also necessary to be competitive for federal
infrastructure improvement funding. Secured funding is made up of $800,000
federal Surface Transportation Program – Urban funds programmed at the
discretion of the Metropolitan Policy Committee, $200,000 of SEDA funding,
$150,000 of Transportation SDC funding, and $50,000 of LTD funding. City
currently has a $500,000 federal grant pending consideration to add funding to the
Project.
The City must work through ODOT to advance the Project as federal dollars are
involved. Further, the City has the opportunity to procure NEPA consulted services
through ODOT’s existing Price Agreement contracts with a variety of qualified
firms.
Once the IGA has been executed by ODOT and the City, ODOT will advertise
City’s request for consulted services through the “Mini Solicitation” process under
a selected ODOT Price Agreement.
The EA is estimated to take about 18 months, which would be significantly below
the national average for this type of work. The purpose of the EA is to fulfill
NEPA requirements to document and mitigate any potential project impacts to
natural, historic and social resources in the Project area. The final EA, called a
Revised Environmental Assessment, must be approved by the City, ODOT and the
Federal Highway Administration.
The City Attorney’s Office has approved the Draft IGA and will stamp the final
IGA prior to its execution.
City of Springfield/ODOT
Agreement No. 26,859
Attachment 1
Page 1 of 17
LOCAL AGENCY AGREEMENT
SURFACE TRANSPORTATION PROGRAM – URBAN
Franklin Boulevard Redevelopment Project
City of 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,”
and the City of Springfield, 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. Oregon Route (OR) 126 Business, (McKenzie Highway) is a part of the state highway
system under the jurisdiction and control of the Oregon Transportation Commission.
2. By the authority granted in Oregon Revised Statutes (ORS) 190.110, 366.572 and
366.576, state agencies 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.
3. The Franklin Boulevard Project will construct modern urban standard improvements
on Franklin Boulevard between downtown Springfield and Interstate 5. This
Agreement will address the requirements and regulations for use of Federal-Aid
Surface Transportation Program funds to help with the development of required
environmental documents for the Project.
NOW THEREFORE, the premises being in general as stated in the foregoing Recitals, it
is agreed by and between the Parties hereto as follows:
TERMS OF AGREEMENT
1. Under such authority, Agency agrees to retain the services of State to perform
project management duties required to develop the National Environmental Policy
Act (NEPA) document for Agency’s Franklin Boulevard Development Project. The
development of the NEPA document is hereinafter referred to as “Project.” State’s
project management duties include, but are not limited to: contracting for
professional services to complete the NEPA document; management of the
professional services contract; coordination with Agency, and other interested
parties; and providing technical oversight of the development of the NEPA
document.
2. Agency is understood to be the Project Sponsor and as such shall have the lead
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responsibility to prepare the NEPA document for submittal to State and the Federal
Highway Administration for approval.
3. The Project will be conducted as a part of the Federal-Aid Surface Transportation
Program (STP) under Title 23, United States Code. The total Project cost is
estimated at $1,200,000, which is subject to change. STP urban funds for this
Project will be limited to $800,000 The Project will be financed with STP funds at the
maximum allowable federal participating amount, with Agency providing the match
and any non-participating costs, including all costs in excess of the available federal
funds.
3. The federal funding for this Project is contingent upon approval by the Federal
Highway Administration (FHWA). Any work performed prior to acceptance by FHWA
or outside the scope of work will be considered nonparticipating and paid for at
Agency expense.
4. State considers Agency a subrecipient of the federal funds it receives as
reimbursement under this Agreement. The Catalog of Federal Domestic Assistance
(CFDA) number and title for this Project is 20.205, Highway Planning and
Construction.
5. The term of this Agreement will begin upon execution and will terminate upon
completion of the Project and final payment or ten (10) calendar years following the
date of final execution, whichever is sooner.
6. This Agreement may be terminated by mutual written consent of both Parties.
7. 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
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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.
8. Any termination of this Agreement will not prejudice any rights or obligations accrued
to the Parties prior to termination.
9. 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 will control over the
attachments, and Attachment 1 will control over Attachment 2.
10. Agency, as a recipient of federal funds, pursuant to this Agreement with 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 will, upon
Agency’s breach of any such conditions that requires State to return funds to the
Federal Highway Administration, hold harmless and indemnify 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 will 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.
11. 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.
12. State’s Project Manager for this Project is Ken Kohl, Area 5 Project Manager, 644 ‘A’
Street, Springfield, Oregon 97477-4609 (541) 747-1496, or assigned designee upon
individual’s absence. Agency’s Project Manager shall be notified in writing of any
contact information changes during the term of this Agreement.
13. Agency’s Project Manager for this Project is Tom Boyatt, Engineering and
Transportation Manager, City of Springfield, 225 North 5th Street, Springfield,
Oregon 97477; telephone (541) 744-3373; email tboyatt@springfield-or.gov, or
assigned designee upon individual’s absence. State’s Project Manager shall be
notified in writing of any contact information changes during the term of this
Agreement.
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Attachment 1
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14. This Agreement may be executed in several counterparts (facsimile or otherwise) all
of which when taken together will 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 will constitute an original.
15. This Agreement and attached exhibits constitute the entire agreement between the
parties on the subject matter hereof. There are no understandings, agreements, or
representations, oral or written, not specified herein regarding this Agreement. No
waiver, consent, modification or change of terms of this Agreement will 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, will be
effective only in the specific instance and for the specific purpose given. The failure
of State to enforce any provision of this Agreement will not constitute a waiver by
State of that or any other provision.
THE PARTIES, by execution of this Agreement, hereby acknowledge that its signing
representatives have read this Agreement, understand it, and agree to be bound by its
terms and conditions.
This Project is amended into the 2008-2011 Statewide Transportation Improvement
Program, (Key #17217) that was approved by the Oregon Transportation Commission
on June 29, 2010.
Signature Page to Follow
City of Springfield/ODOT
Agreement No. 26,859
Attachment 1
Page 5 of 17
CITY OF SPRINGFIELD, by and through
its elected officials
By _______________________________
Date _____________________________
By _______________________________
Date _____________________________
APPROVED AS TO LEGAL
SUFFICIENCY
By _______________________________
Date _____________________________
Agency Contact:
Tom Boyatt
Engineering and Transportation Manager
City of Springfield
225 North 5th Street
Springfield, OR 97477
(541) 744-3373
tboyatt@springfield-or.gov
State Contact:
Ken Kohl
Area 5 Project Manager
644 ‘A’ Street
Springfield, OR 97477-4609
(541) 747-1496
kenneth.l..kohl@odot.state.or.us
STATE OF OREGON, by and through
its Department of Transportation
By _______________________________
Highway Division Administrator
Date _____________________________
APPROVAL RECOMMENDED
By _______________________________
Technical Services Manager/Chief
Engineer
Date ____________________________
By _______________________________
Region 2 Manager
Date ____________________________
By _______________________________
Region 2 Project Delivery Manager
Date _____________________________
By _______________________________
Region 2 Planning and Development
Review Manager
Date _____________________________
APPROVED AS TO LEGAL
SUFFICIENCY
By_______________________________
Assistant Attorney General
Date_____________________________
City of Springfield/ODOT
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6
ATTACHMENT NO. 1 to Agreement No. 26,859
SPECIAL PROVISIONS
1. State shall, as Agency’s consultant and as a federal-aid participating preliminary
engineering function, conduct the necessary project management duties to produce
the required National Environmental Policy Act document for Agency’s Franklin
Boulevard Redevelopment Project.
2. State may make available Professional Services consultant for Local Agency
Projects upon written request. If Agency chooses to use said services, Agency
agrees to manage the work performed by the consultant and make funds available
to the State for payment of those services. All eligible work will be a federally
participating cost and included as part of the total cost of the Project.
3. Indemnification language in the Standards Provisions, Paragraphs 46 and 47; and
Paragraph 4 in regards to tort claims, shall be replaced with the following language:
a. If any third party makes any claim or brings any action, suit or proceeding
alleging a tort as now or hereafter defined in ORS 30.260 ("Third Party Claim")
against State or Agency with respect to which the other Party may have liability,
the notified Party must promptly notify the other Party in writing of the Third Party
Claim and deliver to the other Party a copy of the claim, process, and all legal
pleadings with respect to the Third Party Claim. Each Party is entitled to
participate in the defense of a Third Party Claim, and to defend a Third Party
Claim with counsel of its own choosing. Receipt by a Party of the notice and
copies required in this paragraph and meaningful opportunity for the Party to
participate in the investigation, defense and settlement of the Third Party Claim
with counsel of its own choosing are conditions precedent to that Party's liability
with respect to the Third Party Claim.
b. With respect to a Third Party Claim for which State is jointly liable with Agency
(or would be if joined in the Third Party Claim), State shall contribute to the
amount of expenses (including attorneys' fees), judgments, fines and amounts
paid in settlement actually and reasonably incurred and paid or payable by
Agency in such proportion as is appropriate to reflect the relative fault of State on
the one hand and of Agency on the other hand in connection with the events
which resulted in such expenses, judgments, fines or settlement amounts, as
well as any other relevant equitable considerations. The relative fault of State on
the one hand and of Agency on the other 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
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amount in any instance is capped to the same extent it would have been capped
under Oregon law, including the Oregon Tort Claims Act, ORS 30.260 to 30.300,
if State had sole liability in the proceeding.
c. With respect to a Third Party Claim for which Agency is jointly liable with State
(or would be if joined in the Third Party Claim), Agency shall contribute to the
amount of expenses (including attorneys' fees), judgments, fines and amounts
paid in settlement actually and reasonably incurred and paid or payable by State
in such proportion as is appropriate to reflect the relative fault of Agency on the
one hand and of State on the other hand in connection with the events which
resulted in such expenses, judgments, fines or settlement amounts, as well as
any other relevant equitable considerations. The relative fault of Agency on the
one hand and of State on the other hand shall be determined by reference to,
among other things, the Parties' relative intent, knowledge, access to information
and opportunity to correct or prevent the circumstances resulting in such
expenses, judgments, fines or settlement amounts. Agency's contribution amount
in any instance is capped to the same extent it would have been capped under
Oregon law, including the Oregon Tort Claims Act, ORS 30.260 to 30.300, if it
had sole liability in the proceeding.
d. The Parties shall attempt in good faith to resolve any dispute arising out of this
Agreement. In addition, the Parties may agree to utilize a jointly selected
mediator or arbitrator (for non-binding arbitration) to resolve the dispute short of
litigation.
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ATTACHMENT NO. 2
FEDERAL STANDARD PROVISIONS
JOINT OBLIGATIONS
PROJECT ADMINISTRATION
1. State (ODOT) is acting to fulfill its responsibility to the Federal Highway Administration
(FHWA) by the administration of this Project, and Agency (i.e. county, city, unit of local
government, or other state agency) hereby agrees that State shall have full authority to carry
out this administration. If requested by Agency or if deemed necessary by State in order to
meet its obligations to FHWA, State will further act for Agency in other matters pertaining to
the Project. Agency shall, if necessary, appoint and direct the activities of a Citizen’s
Advisory Committee and/or Technical Advisory Committee, conduct a hearing and
recommend the preferred alternative. State and Agency shall each assign a liaison person
to coordinate activities and assure that the interests of both parties are considered during all
phases of the Project.
2. Any project that uses federal funds in project development is subject to plans, specifications
and estimates (PS&E) review and approval by FHWA or State acting on behalf of FHWA
prior to advertisement for bid proposals, regardless of the source of funding for construction.
PRELIMINARY & CONSTRUCTION ENGINEERING
3. State, Agency, or others may perform preliminary and construction engineering. If Agency or
others perform the engineering, State will monitor the work for conformance with FHWA
rules and regulations. In the event that Agency elects to engage the services of a personal
services consultant to perform any work covered by this Agreement, Agency and Consultant
shall enter into a State reviewed and approved personal services contract process and
resulting contract document. State must concur in the contract prior to beginning any work.
State’s personal services contracting process and resulting contract document will follow
Title 23 Code of Federal Regulations (CFR) 172, Title 49 CFR 18, ORS 279A.055, the
current State Administrative Rules and State Personal Services Contracting Procedures as
approved by the FHWA. Such personal services contract(s) shall contain a description of the
work to be performed, a project schedule, and the method of payment. Subcontracts shall
contain all required provisions of Agency as outlined in the Agreement. No reimbursement
shall be made using federal-aid funds for any costs incurred by Agency or its consultant
prior to receiving authorization from State to proceed. Any amendments to such contract(s)
also require State’s approval.
4. On all construction projects where State is the signatory party to the contract, and where
Agency is doing the construction engineering and project management, Agency, subject to
any limitations imposed by state law and the Oregon Constitution, agrees to accept all
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responsibility, defend lawsuits, indemnify and hold State harmless, for all tort claims,
contract claims, or any other lawsuit arising out of the contractor’s work or Agency’s
supervision of the project.
REQUIRED STATEMENT FOR UNITED STATES DEPARTMENT OF
TRANSPORTATION (USDOT) FINANCIAL ASSISTANCE AGREEMENT
5. If as a condition of assistance, Agency has submitted and the United States Department of
Transportation (USDOT) has approved a Disadvantaged Business Enterprise Affirmative
Action Program which Agency agrees to carry out, this affirmative action program is
incorporated into the financial assistance agreement by reference. That program shall be
treated as a legal obligation and failure to carry out its terms shall be treated as a violation of
the financial assistance agreement. Upon notification from USDOT to Agency of its failure to
carry out the approved program, USDOT shall impose such sanctions as noted in Title 49,
CFR, Part 26, which sanctions may include termination of the agreement or other measures
that may affect the ability of Agency to obtain future USDOT financial assistance.
6. Disadvantaged Business Enterprises (DBE) Obligations. State and its contractor agree
to ensure that DBE as defined in Title 49, CFR, Part 26, have the opportunity to participate
in the performance of contracts and subcontracts financed in whole or in part with federal
funds. In this regard, Agency shall take all necessary and reasonable steps in accordance
with Title 49, CFR, Part 26, to ensure that DBE have the opportunity to compete for and
perform contracts. Neither State nor Agency and its contractors shall discriminate on the
basis of race, color, national origin or sex in the award and performance of
federally-assisted contracts. Agency shall carry out applicable requirements of Title 49,
CFR, Part 26, in the award and administration of such contracts. Failure by Agency to carry
out these requirements is a material breach of this Agreement, which may result in the
termination of this contract or such other remedy as State deems appropriate.
7. The DBE Policy Statement and Obligations shall be included in all subcontracts entered into
under this Agreement.
8. Agency agrees to comply with all applicable civil rights laws, rules and regulations, including
Title V and Section 504 of the Rehabilitation Act of 1973, the Americans with Disabilities Act
of 1990 (ADA), and Titles VI and VII of the Civil Rights Act of 1964.
9. The parties hereto agree and understand that they will comply with all applicable federal,
state, and local laws, regulations, executive orders and ordinances applicable to the work
including, but not limited to, the provisions of ORS 279C.505, 279C.515, 279C.520,
279C.530 and 279B.270, incorporated herein by reference and made a part hereof; Title 23
CFR Parts 1.11, 140, 710, and 771; Title 49 CFR Parts 18, 24 and 26; 2 CFR 225, and
OMB CIRCULAR NO. A-133, Title 23, USC, Federal-Aid Highway Act; Title 41, Chapter 1,
USC 51-58, Anti-Kickback Act; Title 42 USC; Uniform Relocation Assistance and Real
Property Acquisition Policy Act of 1970, as amended and provisions of Federal-Aid Policy
Guide (FAPG).
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STATE OBLIGATIONS
PROJECT FUNDING REQUEST
10. State shall submit a Project funding request to FHWA with a request for approval of federal-
aid participation in all engineering, right-of-way acquisition, eligible utility relocations and/or
construction work for the Project. No work shall proceed on any activity in which
federal-aid participation is desired until such approval has been obtained. The
program shall include services to be provided by State, Agency, or others. State shall notify
Agency in writing when authorization to proceed has been received from FHWA. Major
responsibility for the various phases of the Project will be as outlined in the Special
Provisions. All work and records of such work shall be in conformance with FHWA rules and
regulations.
FINANCE
11. State shall, in the first instance, pay all reimbursable costs of the Project, submit all claims
for federal-aid participation to FHWA in the normal manner and compile accurate cost
accounting records. Agency may request a statement of costs to date at any time by
submitting a written request. When the actual total cost of the Project has been computed,
State shall furnish Agency with an itemized statement of final costs. Agency shall pay an
amount which, when added to said advance deposit and federal reimbursement payment,
will equal 100 percent of the final total actual cost. Any portion of deposits made in excess of
the final total costs of Project, minus federal reimbursement, shall be released to Agency.
The actual cost of services provided by State will be charged to the Project expenditure
account(s) and will be included in the total cost of the Project.
12. If federal funds are used, State will specify the Catalog of Federal Domestic Assistance
(CFDA) number in the Agreement. State will also determine and clearly state in the
Agreement if recipient is a subrecipient or vendor, using criteria in Circular A-133.
PROJECT ACTIVITIES
13. State shall, if the preliminary engineering work is performed by Agency or others, review and
process or approve all environmental statements, preliminary and final plans, specifications
and cost estimates. State shall, if they prepare these documents, offer Agency the
opportunity to review and approve the documents prior to advertising for bids.
14. The party responsible for performing preliminary engineering for the Project shall, as part of
its preliminary engineering costs, obtain all Project related permits necessary for the
construction of said Project. Said permits shall include, but are not limited to, access, utility,
environmental, construction, and approach permits. All pre-construction permits will be
obtained prior to advertisement for construction.
15. State shall prepare contract and bidding documents, advertise for bid proposals, and award
all contracts.
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16. Upon State’s award of a construction contract, State shall perform independent assurance
testing in accordance with State and FHWA Standards, process and pay all contractor
progress estimates, check final quantities and costs, and oversee and provide intermittent
inspection services during the construction phase of the Project.
17. State shall, as a Project expense, assign a liaison person to provide Project monitoring as
needed throughout all phases of Project activities (preliminary engineering, right-of-way
acquisition, and construction). The liaison shall process reimbursement for federal
participation costs.
RIGHT OF WAY
18. State is responsible for proper acquisition of the necessary right of way and easements for
construction and maintenance of the Project. Agency may perform acquisition of the
necessary right of way and easements for construction and maintenance of the Project,
provided Agency (or Agency’s consultant) are qualified to do such work as required by the
State’s Right of Way Manual and have obtained prior approval from State’s Region Right of
Way office to do such work.
19. Regardless of who acquires or performs any of the right of way activities, a right of way
services agreement shall be created by State’s Region Right of Way office setting forth the
responsibilities and activities to be accomplished by each party. State shall always be
responsible for requesting project funding, coordinating certification of the right of way, and
providing oversight and monitoring. Funding authorization requests for federal right of way
funds must be sent through the State’s Region Right of Way offices on all projects. All
projects must have right of way certification coordinated through State’s Region Right of
Way offices (even for projects where no federal funds were used for right of way, but federal
funds were used elsewhere on the Project). Agency should contact the State’s Region Right
of Way office for additional information or clarification.
20. State shall review all right of way activities engaged in by Agency to assure compliance with
applicable laws and regulations. Agency agrees that right of way activities shall be in accord
with the Uniform Relocation Assistance & Real Property Acquisition Policies Act of 1970, as
amended, ORS Chapter 35, FHWA Federal-Aid Policy Guide, State’s Right of Way Manual
and the Code of Federal Regulations, Title 23, Part 710 and Title 49, Part 24.
21. If any real property purchased with federal-aid participation is no longer needed for the
originally authorized purpose, the disposition of such property shall be subject to applicable
rules and regulations, which are in effect at the time of disposition. Reimbursement to State
and FHWA of the required proportionate shares of the fair market value may be required.
22. Agency insures that all Project right of way monumentation will be conducted in
conformance with ORS 209.155.
23. State and Agency grants each other authority to enter onto the other’s right of way for the
performance of the Project.
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AGENCY OBLIGATIONS
FINANCE
24. Federal funds shall be applied toward Project costs at the current federal-aid matching ratio,
unless otherwise agreed and allowable by law. Agency shall be responsible for the entire
match amount, unless otherwise agreed to and specified in the intergovernmental
agreement.
25. Agency’s estimated share and advance deposit.
a) Agency shall, prior to commencement of the preliminary engineering and/or
right of way acquisition phases, deposit with State its estimated share of each
phase. Exception may be made in the case of projects where Agency has
written approval from State to use in-kind contributions rather than cash to
satisfy all or part of the matching funds requirement.
b) Agency’s construction phase deposit shall be 110 percent of Agency's share
of the engineer’s estimate and shall be received prior to award of the
construction contract. Any additional balance of the deposit, based on the
actual bid must be received within forty-five (45) days of receipt of written
notification by State of the final amount due, unless the contract is canceled.
Any unnecessary balance of a cash deposit, based on the actual bid, will be
refunded within forty-five (45) days of receipt by State of the Project
sponsor’s written request.
c) Pursuant to ORS 366.425, the advance deposit may be in the form of
1) money deposited in the State Treasury (an option where a deposit is made
in the Local Government Investment Pool, and an Irrevocable Limited Power
of Attorney is sent to the Highway Finance Office), or 2) an Irrevocable Letter
of Credit issued by a local bank in the name of State, or 3) cash.
d) Agency may satisfy all or part of any matching funds requirements by use of
in-kind contributions rather than cash when prior written approval has been
given by State.
26. If the estimated cost exceeds the total matched federal funds available, Agency shall
deposit its share of the required matching funds, plus 100 percent of all costs in excess of
the total matched federal funds. Agency shall also pay 100 percent of the cost of any item in
which FHWA will not participate. If Agency has not repaid any non-participating cost, future
allocations of federal funds, or allocations of State Highway Trust Funds, to that Agency
may be withheld to pay the non-participating costs. If State approves processes,
procedures, or contract administration outside the Local Agency Guidelines that result in
items being declared non-participating, those items will not result in the withholding of
Agency's future allocations of federal funds or the future allocations of State Highway Trust
Funds.
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27. Costs incurred by State and Agency for services performed in connection with any phase of
the Project shall be charged to the Project, unless otherwise mutually agreed upon.
28. If Agency makes a written request for the cancellation of a federal-aid project; Agency shall
bear 100 percent of all costs as of the date of cancellation. If State was the sole cause of the
cancellation, State shall bear 100 percent of all costs incurred. If it is determined that the
cancellation was caused by third parties or circumstances beyond the control of State or
Agency, Agency shall bear all development costs, whether incurred by State or Agency,
either directly or through contract services, and State shall bear any State administrative
costs incurred. After settlement of payments, State shall deliver surveys, maps, field notes,
and all other data to Agency.
29. Agency shall follow requirements of the Single Audit Act. The requirements stated in the
Single Audit Act must be followed by those local governments and non-profit organizations
receiving $500,000 or more in federal funds. The Single Audit Act of 1984, PL 98-502 as
amended by PL 104-156, described in "OMB CIRCULAR NO. A-133", requires local
governments and non-profit organizations to obtain an audit that includes internal controls
and compliance with federal laws and regulations of all federally-funded programs in which
the local agency participates. The cost of this audit can be partially prorated to the federal
program.
30. Agency shall make additional deposits, as needed, upon request from State. Requests for
additional deposits shall be accompanied by an itemized statement of expenditures and an
estimated cost to complete the Project.
31. Agency shall present invoices for 100 percent of actual costs incurred by Agency on behalf
of the Project directly to State’s Liaison Person for review and approval. Such invoices shall
identify the Project and Agreement number, and shall itemize and explain all expenses for
which reimbursement is claimed. Billings shall be presented for periods of not less than one-
month duration, based on actual expenses to date. All billings received from Agency must
be approved by State’s Liaison Person prior to payment. Agency’s actual costs eligible for
federal-aid or State participation shall be those allowable under the provisions of Title 23
CFR Parts 1.11, 140 and 710, Final billings shall be submitted to State for processing within
three (3) months from the end of each funding phase as follows: 1) award date of a
construction contract for preliminary engineering (PE) 2) last payment for right of way
acquisition and 3) third notification for construction. Partial billing (progress payment) shall
be submitted to State within three (3) months from date that costs are incurred. Final billings
submitted after the three months shall not be eligible for reimbursement.
32. The cost records and accounts pertaining to work covered by this Agreement are to be kept
available for inspection by representatives of State and FHWA for a period of six (6) years
following the date of final voucher to FHWA. Copies of such records and accounts shall be
made available upon request. For real property and equipment, the retention period starts
from the date of disposition (Title 49 CFR 18.42).
33. State shall request reimbursement, and Agency agrees to reimburse State, for federal-aid
funds distributed to Agency if any of the following events occur:
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a) Right of way acquisition or actual construction of the facility for which
preliminary engineering is undertaken is not started by the close of the tenth
fiscal year following the fiscal year in which the federal-aid funds were
authorized;
b) Right of way acquisition is undertaken utilizing federal-aid funds and actual
construction is not started by the close of the twentieth fiscal year following
the fiscal year in which the federal-aid funds were authorized for right of way
acquisition.
c) Construction proceeds after the Project is determined to be ineligible for
federal-aid funding (e.g., no environmental approval, lacking permits, or other
reasons).
34. Agency shall maintain all Project documentation in keeping with State and FHWA standards
and specifications. This shall include, but is not limited to, daily work records, quantity
documentation, material invoices and quality documentation, certificates of origin, process
control records, test results, and inspection records to ensure that projects are completed in
conformance with approved plans and specifications.
RAILROADS
35. Agency shall follow State established policy and procedures when impacts occur on railroad
property. The policy and procedures are available through State’s appropriate Region
contact or State’s Railroad Liaison. Only those costs allowable under Title 23 CFR Part 646,
subpart B and Title 23 CFR Part 140, subpart I, shall be included in the total Project costs;
all other costs associated with railroad work will be at the sole expense of Agency, or others.
Agency may request State, in writing, to provide railroad coordination and negotiations.
However, State is under no obligation to agree to perform said duties.
UTILITIES
36. Agency shall follow State established Statutes, Policies and Procedures when impacts occur
to privately or publicly-owned utilities. Only those utility relocations, which are eligible for
federal-aid participation under, the FAPG, Title 23 CFR 645A, Subpart A and B, shall be
included in the total Project costs; all other utility relocations shall be at the sole expense of
Agency, or others. State will arrange for utility relocations/adjustments in areas lying within
jurisdiction of State, if State is performing the preliminary engineering. Agency may request
State in writing to arrange for utility relocations/adjustments lying within Agency jurisdiction,
acting on behalf of Agency. This request must be submitted no later than twenty-one (21)
weeks prior to bid let date. However, State is under no obligation to agree to perform said
duties.
37. The State utility relocation policy, procedures and forms are available through the
appropriate State’s Region Utility Specialist or State Utility Liaison. Agency shall provide
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copies of all signed utility notifications, agreements and Utility Certification to the State Utility
Liaison.
STANDARDS
38. Agency agrees that design standards for all projects on the National Highway System (NHS)
and the Oregon State Highway System shall be in compliance to standards specified in the
current “State Highway Design Manual” and related references. Construction plans shall be
in conformance with standard practices of State for plans prepared by its own staff. All
specifications for the Project shall be in substantial compliance with the most current
“Oregon Standard Specifications for Highway Construction”.
39. Agency agrees that minimum design standards for non-NHS projects shall be recommended
AASHTO Standards and in accordance with the current “Oregon Bicycle and Pedestrian
Plan”, unless otherwise requested by Agency and approved by State.
40. Agency agrees and will verify that the installation of traffic control devices shall meet the
warrants prescribed in the “Manual on Uniform Traffic Control Devices and Oregon
Supplements”.
41. All plans and specifications shall be developed in general conformance with the current
"Contract Plans Development Guide" and the current “Oregon Standard Specifications for
Highway Construction” and/or guidelines provided.
42. The standard unit of measurement for all aspects of the Project shall be English Units. All
Project documents and products shall be in English. This includes, but is not limited to, right
of way, environmental documents, plans and specifications, and utilities.
GRADE CHANGE LIABILITY
43. Agency, if a County, acknowledges the effect and scope of ORS 105.755 and agrees that all
acts necessary to complete construction of the Project which may alter or change the grade
of existing county roads are being accomplished at the direct request of the County.
44. Agency, if a City, hereby accepts responsibility for all claims for damages from grade
changes. Approval of plans by State shall not subject State to liability under ORS 105.760 for
change of grade.
45. Agency, if a City, by execution of Agreement, gives its consent as required by ORS
373.030(2) to any and all changes of grade within the City limits, and gives its consent as
required by ORS 373.050(1) to any and all closure of streets intersecting the highway, if any
there be in connection with or arising out of the project covered by the Agreement.
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CONTRACTOR CLAIMS
46. Agency shall, to the extent permitted by state law, indemnify, hold harmless and provide
legal defense for State against all claims brought by the contractor, or others resulting from
Agency’s failure to comply with the terms of this Agreement.
47. Notwithstanding the foregoing defense obligations under Paragraph 46, neither Agency nor
any attorney engaged by Agency shall defend any claim in the name of the State of Oregon
or any agency of the State of Oregon, nor purport to act as legal representative of the State
of Oregon or any of its agencies, without the prior written consent of the Oregon Attorney
General. The State of Oregon may, at anytime at its election assume its own defense and
settlement in the event that it determines that Agency is prohibited from defending the State
of Oregon, or that Agency is not adequately defending the State of Oregon's interests, or
that an important governmental principle is at issue or that it is in the best interests of the
State of Oregon to do so. The State of Oregon reserves all rights to pursue any claims it
may have against Agency if the State of Oregon elects to assume its own defense.
MAINTENANCE RESPONSIBILITIES
48. Agency shall, upon completion of construction, thereafter maintain and operate the Project
at its own cost and expense, and in a manner satisfactory to State and FHWA.
WORKERS’ COMPENSATION COVERAGE
49. All employers, including Agency, that employ subject workers who work under this
Agreement in the State of Oregon shall comply with ORS 656.017 and provide the required
Workers' Compensation coverage unless such employers are exempt under ORS 656.126.
Employers Liability Insurance with coverage limits of not less than $500,000 must be
included. Agency shall ensure that each of its contractors complies with these
requirements.
LOBBYING RESTRICTIONS
50. Agency certifies by signing the Agreement that:
a) No federal appropriated funds have been paid or will be paid, by or on behalf
of the undersigned, to any person for influencing or attempting to influence an
officer or employee of any federal agency, a Member of Congress, an officer
or employee of Congress, or an employee of a Member of Congress in
connection with the awarding of any federal contract, the making of any
federal grant, the making of any federal loan, the entering into of any
cooperative agreement, and the extension, continuation, renewal,
amendment, or modification of any federal contract, grant, loan, or
cooperative agreement.
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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 $100,000, and that all such
subrecipients shall certify and disclose accordingly.
d) This certification is a material representation of fact upon which reliance was
placed when this transaction was made or entered into. Submission of this
certification is a prerequisite for making or entering into this transaction
imposed by Title 31, USC Section 1352.
e) Any person who fails to file the required certification shall be subject to a civil
penalty of not less than $10,000 and not more than $100,000 for each such
failure.
Paragraphs 36, 37, and 48 are not applicable to any local agency on state highway projects.