HomeMy WebLinkAboutDoc 001 - Bridge Repl - TetherowDeschutes County Board of Commissioners
1300 NW Wall St., Suite 200, Bend, OR 97701-1960
(541) 388-6570 -Fax (541) 385-3202 -www.deschutes.org
AGENDA REQUEST & STAFF REPORT
For Board Business Meeting of January 8, 2014
DATE: December 24, 2013
FROM: George Kolb, County Engineer Road 541-322-7113
TITLE OF AGENDA ITEM:
Consideration of Board signature of Document No. 2014-001, Local Agency Agreement, Local Bridge
Program (LBP) Project, Tetherow Rd: Deschutes River Bridge Replacement -Bridge 17C26.
PUBLIC HEARING ON THIS DATE? NO.
BACKGROUND AND POLICY IMPLICATIONS:
Deschutes County is working with ODOT to replace the existing bridge located on Tetherow Road.
This project will involve removal of the existing weight limited structure and replacement with a new
structure that will provide more clearance over the stream and will meet Federal requirements for
bridge structures. The funding for this project is through the Federal Local Bridge Program (LPB) and
the County is responsible for a 10.27% match of the project cost.
This agreement outlines the project responsibilities of both Deschutes County and ODOT and covers
only the preliminary engineering portion of the project, which is estimated to be $582,000. The LBP
funds will be limited to $522,229 with Deschutes County providing the 10.27% match ($59,772). Per
the agreement, the County will also be responsible for any non-participating costs including all costs in
excess of the available federal funds. The final match amount will be determined based on the actual
expenditures at the conclusion of preliminary engineering.
FISCAL IMPLICATIONS:
Funding for this project will be budgeted via the Capital Improvement Project (CIP) budget line. The
Road Department has accumulated CIP reserves in excess of the required match amount. Additionally,
SDC funds can be utilized for the match requirement as well.
RECOMMENDATION & ACTION REQUESTED:
Move approval of Board signature of Document No. 2014-001, the Local Agency Agreement, Local
Bridge Program (LBP) Project, Tetherow Rd: Deschutes River Bridge Replacement -Bridge 17C26.
ATTENDANCE: George Kolb, County Engineer
DISTRIBUTION OF DOCUMENTS:
Return both originals to Sheila OdIe (ext. 7148) at the Road Department for forwarding on to the
Oregon Department of Transportation for final signature.
DESCHUTES COUNTY DOCUMENT SUMMARY
Contractor/Su pplier/Consu ltant Name: '-'-"--""-'______---''--______'--'--...L....C...........-,...;-.l....-----,
(NOTE: This form is required to be submitted with ALL contracts and other agreements, regardless of whether the document is to be
on a Board agenda or can be signed by the County Administrator or Department Director. If the document is to be on a Board
agenda, the Agenda Request Form is also required. If this form is not included with the document, the document will be retumed to
the Department. Please submit documents to the Board Secretary for tracking purposes. and not directly to Legal Counsel. the
County Administrator or the Commissioners. In addition to submitting this form with your documents, please submit this form
electronically to the Board Secretary.)
Please complete all sections above the Official Review line.
Date: 11/8/20141 Department: IRoadl
Contractor Contact: IDarrell Newtoij
~
Type of Document: Local Agency Agreement, Local Bridge Program Project
Goods and/or Services: This agreement outlines the responsiblities of both the
Oregon Department of Transportation and Deschutes County conceming the
replacement of T etherow Bridge.
Background &History: Deschutes County is working with ODOT to replace the
existing bridge located on Tetherow Road. This project will involve removal of the
existing weight limited structure and replacement with a new structure that will provide
more clearance over the stream and will meet Federal requirements for bridge
structures. The funding for this project is through the Federal Local Bridge Program
(LPB) and the County is responsible for a 10.27% match of the project cost. This
agreement outlines the project responsibilites of both Deschutes County and ODOT and
covers only the preliminary engineering portion of the project which is estimated to be
$582,000. The LBP funds will be limited to $522,229 with Deschutes County providing
the 10.27% match ($59,772). Per the agreement, the County will also be responsible
for any non-participating costs including all costs in excess of the available federal
funds. The final match amount will be determined based on the actual expenditures at
the conclusion of preliminary engineering.
Agreement Starting Date: IUpon Signature! Ending Date: IProjecij
~erminationl
Annual Value or Total Payment: \$582,OOq
D Insurance Certificate Recei,ed (cleck box)
Insurance Expiration Date:
Check all that apply:
D RFP, Solicitation or Bid Process
D Informal quotes «$150K)
D Exempt from RFP, Solicitation or Bid Process (specify see DCC §2.37)
Funding Source: (Included in current budget? DYes D No
12/16/2013
If No, has budget amendment been submitted? 0 Yes 0 No
Is this a Grant Agreement providing revenue to the County? 0 Yes 0 No
Special conditions attached to this grant:
Deadlines for reporting to the grantor:
If a new FTE will be hired with grant funds, confirm that Personnel has been notified that
it is a grant-funded position so that this will be noted in the offer letter: 0 Yes 0 No
Contact information for the person responsible for grant compliance:
Name:
Phone#: I
'-----'
Departmental Contact and Title: George Kolb, PE, eounty Engineer
Phone #: 541-322-7113 C-3Jtt: 1~'~Ij)Department Director Approval:
Signature Date
Distribution of Document: Return both originals to Sheila Odie (ext. 7148) at the
Road Department for forwarding on to the Federal Highway Administration for final
signature.
Official Review:
County Signature Required (check one): 0 BOee 0 Department Director (if <$25K)
o Administrator (if >$25K but <$150K; if >$150K, BOCe Order No. ____--I)
Legal Review Date
DC 2014·001
Document Number __
12116/2013
Tetherow Road Bridge Replacement
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REVIEVv'ED
Misc. Contracts and Agreements
No. 29466
LOCAL AGENCY AGREEMENT
LOCAL BRIDGE PROGRAM (LBP) PROJECT
Tetherow Rd: Deschutes River Bridge Replacement -Bridge No. 17C26
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 DESCHUTES COUNTY, 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. Tetherow Road is a part of the county road system under the jurisdiction and control
of county.
2. Tetherow Bridge is located approximately 4 miles northwest of Redmond, Oregon.
The existing 20 foot wide by 53 foot long one lane bridge has non-engineered
concrete pads that are being undercut and eroded by the river. The existing bridge's
sufficiency rating is 32.3 and the bridge is classified as "Structurally Deficient".
3. By the authority granted in Oregon Revised Statute (ORS) 190.110, 366.572 and
366.576, State may enter into cooperative agreements with counties, cities and units
of local governments for the performance of work on certain types of improvement
projects with the allocation of costs on terms and conditions mutually agreeable to the
contracting parties.
NOW THEREFORE, the premises being in general as stated in the foregoing Recitals, it
is agreed by and between the Parties hereto as follows:
TERMS OF AGREEMENT
1. Under such authority, State and Agency agree to prepare the preliminary engineering
plans for the replacement of the existing bridge on Tetherow Road from approximately
mile point .99 to mile point 1.33. The location of the Project is approximately as
shown on the detailed map attached hereto, marked "Exhibit A," and by this reference
made a part hereof. The Project Key Milestones, Budget and Progress Report details
are further described in Exhibit B, attached hereto and by this reference made a part
hereof.
2. The Project shall be conducted as a part of the Local Bridge Program (LBP), with
funds provided under Title 23, United States Code. The total Project cost is estimated
at $582,000, which is subject to change. The LBP funds shall be limited to $522,229
with Agency providing the match and any non-participating costs, including all costs in
excess of the available federal funds.
08-08-12
Key No. 18394
DC 2014,·001
ODOT/Deschutes County
Agreement No. 29466
3. Agency may satisfy the matching funds requirement through a contribution of
materials and services for the Project. This contribution wi" only be allowed upon
approval of State's Program and Funding Services Manager, after review for
compliance with State's "Procedures for Donations and Contributions.
4. Agency shall submit Monthly Progress Reports to State's Contact and State's Bridge
STIP Coordinator and Project Change Requests to State's Contact, following the
process as listed in Exhibit B.
5. Agency agrees to the conditions set forth in Exhibit B.
6. 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.
7. 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.
8. The term of this Agreement shall begin on the date all required signatures are
obtained and shall terminate upon completion of the Project and final payment or five
(5) calendar years following the date all required signatures are obtained, whichever is
sooner.
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 a" instances, except for Claims ariSing solely from the negligent or
willful acts or omissions of State, be indemnified by the contractor and subcontractor
from and against any and all Claims.
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
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ODOT/Deschutes County
Agreement No. 29466
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. This Agreement may be terminated by mutual written consent of both Parties.
12. State may terminate this Agreement effective upon delivery of written notice to
Agency, or at such later date as may be established by State, under any of the
following conditions:
a. If Agency fails to provide services called for by this Agreement within the
time speCified herein or any extension thereof.
b. If Agency fails to perform any of the other provisions of this Agreement,
or so fails to pursue the work as to endanger performance of this
Agreement in accordance with its terms, and after receipt of written
notice from State fails to correct such failures within ten (10) days or
such longer period as State may authorize.
c. If Agency fails to provide payment of its share of the cost of the Project.
d. If State fails to receive funding, appropriations, limitations or other
expenditure authority sufficient to allow State, in the exercise of its
reasonable administrative discretion, to continue to make payments for
performance of this Agreement.
e. If federal or state laws, regulations or guidelines are modified or
interpreted in such a way that either the work under this Agreement is
prohibited or if State is prohibited from paying for such work from the
planned funding source.
13 Any termination of this Agreement shall not prejudice any rights or obligations accrued
to the Parties prior to termination.
14. 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.
15. 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
FHWA, hold harmless and indemnify the State for an amount equal to the funds
received under this Agreement; or if legal limitations apply to the indemnification ability
of Agency, the indemnification amount shall be the maximum amount of funds
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ODOTlDeschutes County
Agreement No. 29466
available for expenditure, including any available contingency funds or other available
non-appropriated funds, up to the amount received under this Agreement.
16. 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.
17. 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.
18. 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.
19. State's Bridge STIP Coordinator is Anna Dunlap, ODOT Bridge Section, 4040
Fairview Industrial Drive SE, MS#4, Salem, OR, 97302, 503-986-3391,
anna.m.dunlap@odot.state.or.us, or assigned designee upon individual's absence.
State shall notify the other Party in writing of any contact information changes during
the term of this Agreement.
20. State's contact for this Agreement is Darrell Newton -Local Agency Programs
Coordinator, 63055 N. Hwy 97, Bend, OR 97701-5756, (541) 388-6272,
Darrell.r.newton@odot.state.or.us. or assigned designee upon individual's absence.
State shall notify the other Party in writing of any contact information changes during
the term of this Agreement.
21.Agenc¥t's Project Manager for this Project is George Kolb -County Engineer, 6150
SE 27 h St., Bend, OR 97702, (541) 388-6581, georgek@co.deschutes.or.us, or
assigned designee upon individual's absence. Agency shall notify the other Party in
writing of any contact information changes during the term of this Agreement.
THE PARTIES, by execution of this Agreement, hereby acknowledge that their signing
representatives have read this Agreement, understand it, and agree to be bound by its
terms and conditions.
This Project is in the 2012-2015 Statewide Transportation Improvement Program, (Key
# 18394) that was adopted by the Oregon Transportation Commission on March 21,
2012 (or subsequently approved by amendment to the STIP).
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ODOT/Deschutes County
Agreement No. 29466
DESCHUTES COUNTY, by and through its STA TE OF OREGON, by and through
elected officials its Department of Transportation
By ____________________
Chair
Date ____________
By ___~--------------Commissioner
Date ________________
By ______________________
Commissioner
Date _________________
APPROVED AS TO LEGAL
SUFFICIENCY
By __~--------------Agency Counsel
Date ___________________
Agency Contact:
George Kolb -County Engineer
6150 SE 27 th St.
Bend, OR 97702
(541) 322-7113
georgek@co.deschutes.or.us
State Contact:
Darrell Newton -Local Agency Programs
Coordinator
63055 N. Hwy 97, Bldg M
Bend, Or 97701-5765
(541) 388-6272
Darrell.r.newton@odot.state.or.us
State Contact:
Anna Dunlap -Bridge STIP Coordinator
ODOT Bridge Section
4040 Fairview Industrial Drive SE, MS#4
Salem, OR, 97302
(503) 986-3391
anna.m.dunlap@odot.state.or.us
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By ___~~___~~__________
Highway Division Administrator
Date __________________
APPROVAL RECOMMENDED
By _____________---
Technical Services Manager/Chief
Engineer
Date _______________
By ___~-------------Region 4 Manager
Date ________________
By __________________
Region 4 Local Agency Liaison
Date ----------------------
APPROVED AS TO LEGAL
SUFFICIENCY
By________~--___----
Assistant Attorney General
Date____________
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ODOT/Deschutes County
Agreement No. 29466
EXHIBIT A -PROJECT LOCATION MAP
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ODOT/Deschutes County
Agreement No. 29466
EXHIBIT B -PROJECT KEY MILESTONES AND SCHEDULE
Agreement No. 29466
Project Name: Tetherow Rd: Deschutes River Bridge Replacement. Bridge No.
17C26
1. Project Description
Prepare preliminary engineering plans to replace the existing T etherow Rd: Deschutes
River Bridge No. 17C26 (from approximately mile point .99 to mile point 1.33) that
meets current design standards.
2. This Project is subject to progress reporting and project change process as stated in
paragraphs 3-6 1 below.
3. Monthly Progress Reports lMPRl -Agency shall submit monthly progress reports
using MPR Form 734-2862, attached by reference and made a part of this
Agreement. The Monthly Progress Report is due by the 5th day of each month,
starting the first full month after execution of this Agreement, and continuing through
the first month after State issues Project Acceptance.
The fillable MPR form and instructions are available at the following address:
http://www.oregon.gov/ODOT/HWY/LGSlonline.shtml
4. Project Milestones -The Parties agree that the dates shown in Table 1 constitute
the intended schedule for advancing and completing the Project. Project Milestones
may only be changed through amendment of this Agreement, after obtaining an
approved Project Change Request.
Table 1: Project Milestones
1
2
3
4
Milestone Description Obligation Estimated
Date BudJlet
Obligation (Federal Authorization) of Funds for the December 31, $582,000
Preliminary Engineering phase of Project 2013
Obligation (Federal Authorization) of Funds for the Right-N/A N/A
of-Way phase of the Project
Obligation (Federal Authorization) of Funds for the Utility N/A N/A
phase of Project
Obligation (Federal Authorization) of Funds for the N/A N/A
Construction phase of Project
Total Project Cost: $582,000
5. Project Change Request (PCR) Process -Agency must obtain approval from
State's Contact and State's Bridge Engineer for changes to the Project's scope,
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Agreement No. 29466
schedule, or budget by submitting a PCR, as specified in paragraphs 5a, 5b, and 5c,
below. Agency shall be fully responsible for all costs attributable to changes to the
established Project scope, schedule or budget and prior to an approved PCR.
Amendments to this agreement are required for all approved PCRs.
a. Scope· A PCR is required for a change or in the scope of work described in
the Project Description (Paragraph 1 of this Exhibit).
b. Schedule-A PCR is required if Agency or State's Contact anticipate that any
Project Milestone will be delayed by more than ninety (90) days, and also for
any change in schedule that will require amendment of the Statewide Trans
portation Improvement Program (STIP).
c. Budget -The project's estimated budget is used for determining the level of
compensation for completed work. Increases or decreases in the budget
which require a STIP amendment also require the submission of a Project
Change Request to the State's Regional Local Agency Liaison.
d. PCR requests that result in Project cost increases that are equal to or less
than twenty (20) percent of the total estimated Project cost or $200,000,
whichever amount is less, can be approved by the State Bridge Engineer.
Amendments can be approved and entered into by the State Bridge Engineer.
e. PCR requests that result in a Project cost increase in excess of (20) percent
of the total estimated Project cost or $200,000, whichever amount is greater,
must be approved by the State Bridge Engineer and the Local Agency Bridge
Selection Committee with a majority vote. Amendments must be executed by
the same officials who executed the original Agreement.
6. PCR Form • Agency must submit all change requests using PCR Form 734-2863,
attached by reference and made a part of this Agreement. The PCR Form is due no
later than thirty (30) days after the need for change becomes known to Agency. The
PCR shall explain what change is being requested, the reasons for the change, and
any efforts to mitigate the change. A Project Change Request may be rejected at the
discretion of State's Bridge Engineer.
The fillable PCR form and its instructions are available at the following web site:
http://www.oregon.gov/ODOT/HWY/LGS/online.shtml
7. Consequence for Non-Performance· If Agency fails to fulfill its obligations in
paragraphs No. 3 through No. 6 above, or does not assist in advancing the Project
or perform tasks that the Agency is responsible for under the Project Milestones,
State's course of action through the duration of Agency's default may include: (a)
restricting Agency consideration for future funds awarded through State's Active
Transportation Section, then (b) withdrawing unused Project funds, and then (c)
terminating this Agreement as stated in Terms of Agreement, Paragraphs No. 13a
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ODOT/Deschutes County
Agreement No. 29466
and 13b of this Ag reement and recovery of payments pursuant to Federal Standard
Provisions, Attachment 2 to this Agreement.
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Agreement No. 29466
A ITACHMENT NO. 1 to Agreement No. 29466
SPECIAL PROVISIONS
1. Agency (if qualified through State's "Local Agency Certification" program) or its
consultant shall, as a federal-aid participating preliminary engineering function,
conduct the necessary field surveys, environmental studies, traffic investigations,
foundation explorations, and hydraulic studies, identify and obtain all required
permits, assist State with acquisition of necessary right of way and/or easements,
and perform all preliminary engineering and design work required to produce final
plans, preliminarylfinal specifications and cost estimates. State shall provide free
bridge design to Agency, if Agency is eligible for such funds under ORS 366.155(1)
(h) and if Agency has made request to State for free bridge design.
2. Agency guarantees the availability of Agency funding in an amount required to fully
fund Agency's share of the Project. Prior to award of the contract, Agency shall
provide State its share of the Project cost upon receipt of request from State. The
Project cost is defined as the Engineers estimate plus ten (10) percent.
3. Upon State's award of the construction contract, Agency, or its consultant, shall be
responsible to perform all construction engineering, field testing of materials,
technical inspection and project manager services for administration of the contract.
4. State may make available Region's On-Call PE, Design and Construction
Engineering Services consultant for Local Agency Projects upon written request. If
Agency chooses to IJse said services, they agree to manage the work done by the
consultant and make funds available to the State for payment of those services. All
eligible work shall be a federally partiCipating cost and included as part of the total
cost of the Project.
5. Agency shall design the Project to meet the American Association of State Highway
and Transportation Officials (AASHTO) Load Resistance Factor Design, (LRFD)
Bridge Design Speci'fications and the Local Agency Guidelines (LAG Manual).
6. 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:
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ODOT IDeschutes County
Agreement No. 29466
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
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.
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Agreement No. 29466
d. The Parties shall attempt in good faith to resolve any dispute arising out of this
Agreement and Supplemental Project Agreements. In addition, the Parties may
agree to utilize a jointly selected mediator or arbitrator (for non-binding
arbitration) to resolve the dispute short of litigation.
7. Agency shall, at its own expense, maintain and operate the Project upon completion
and throughout the useful life of the Project at a minimum level that is consistent with
normal depreciation and/or service demand. State and Agency agree that the useful
life of this Project is defined as seventy-five (75) years.
B. Maintenance responsibilities will survive any termination of this Agreement.
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State/Agency
Agreement No.
ATTACHMENT NO.2
FEDERAL STANDARD PROVISIONS
JOINT OBLIGATIONS
PROJECT ADMINISTRATION
1. State (OOOT) is acting to fulfill its responsibility to the Federal Highway Administration
(FHWA) by the administration of this Project, and Agency (Le. 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 advertisem ent 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 federalpaid funds for any costs incurred by Agency or its consultant
prior to receiving authorization from State to proceed. Any amendments to such contract{s)
also require State's approval.
4. On all construction projects where State is the signatory party to the contract, and where
Agency is doing the construction engineering and project management, Agency, subject to
any limitations imposed by state law and the Oregon Constitution. agrees to accept all
responsibility, defend lawsuits, indemnify and hold State harmless, for all tort claims,
contract claims, or any other lawsuit ariSing out of the contractor's work or Agency's
supervision of the project.
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REQUIRED STATEMENT FOR UNITED STATES DEPARTMENT OF
TRANSPORTATION (USDOT) FINANCIAL ASSISTANCE AGREEMENT
5. If as a condition of assistance, Agency has submitted and the United States Department of
Transportation (USDOT) has approved a Disadvantaged Business Enterprise Affirmative
Action Program which Agency agrees to carry out, this affirmative action program is
incorporated into the financial assistance agreement by reference. That program shall be
treated as a legal obligation and failure to carry out its terms shall be treated as a violation of
the financial assistance agreement. Upon notification from USDOT to Agency of its failure to
carry out the approved program, USDOT shall impose such sanctions as noted in Title 49.
CFR. Part 26, which sanctions may include termination of the agreement or other measures
that may affect the ability of Agency to obtain future USDOT financial assistance.
6. Disadvantaged Business Enterprises (DB E) 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 Agreem ent.
8. Agency agrees to comply with all applicable civil rights laws, rules and regulations, including
Title V and Section 504 of the Rehabilitation Act of 1973, the Americans with Disabilities Act
of 1990 (ADA), and Titles VI and VII of the Civil Rights Act of 1964.
9. The parties hereto agree and understand that they will comply with all applicable federal,
state, and local laws, regulations. executive orders and ordinances applicable to the work
including, but not limited to, the provisions of ORS 279C.505. 279C.515. 279C.520.
279C.530 and 279B.270. incorporated herein by reference and made a part hereof: Title 23
CFR Parts 1.11. 140. 710. and 771: Title 49 CFR Parts 18. 24 and 26: 2 CFR 225. and
OMB CIRCULAR NO. A-133. Title 23. USC, Federal-Aid Highway Act: Title 41. Chapter 1.
USC 51-58, Anti-Kickback Act; Title 42 USC; Uniform Relocation Assistance and Real
Property Acquisition Policy Act of 1970. as amended and prOVisions of Federal-Aid Policy
Guide (FAPG).
STATE OBLIGATIONS
PROJECT FUNDING REQUEST
10. State shall submit a Project funding request to FHWA with a request for approval of federal
aid participation in all engineering, right-of-way acquisition. eligible utility relocations and/or
construction work for the Project. No work shall proceed on any activity in which
federal-aid participation is desired until such approval has been obtained. The
program shall include services to be provided by State, Agency, or others. State shall notify
Agency in writing when authorization to proceed has been received from FHWA. Major
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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 fumish Agency with an itemized statement of final costs. Agency shalt 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 docum ents prior to advertising for bids.
14. The party responsible for performing preliminary engineering for the Project shall, as part of
its preliminary engineering costs, obtain all Project related permits necessary for the
construction of said Project. Said permits shall include, but are not limited to, access, utility,
environmental, construction, and approach permits. All pre.construction permits will be
obtained prior to advertisement for construction.
15. State shall prepare contract and bidding documents, advertise for bid proposals, and award
all contracts.
16. Upon State's award of a construction contract, State shall perform independent assurance
testing in accordance with State and FHWA Standards, process and pay all contractor
progress estimates, check final quantities and costs, and oversee and provide intermittent
inspection services during the construction phase of the Project.
17. State shall, as a Project expense, assign a liaison person to provide Project monitoring as
needed throughout all phases of Project activities (preliminary engineering, right·of·way
acquisition, and construction). The liaison shall process reimbursement for federal
participation costs.
RIGHT OF WAY
18. State is responsible for proper acquisition of the necessary right of way and easements for
construction and maintenance of the Project. Agency may perform acquisition of the
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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.
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
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I construction contract. Any additional balance of the deposit, based on the
I 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.
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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.
I 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
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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-participati ng cost, future
allocations of federal funds, or allocations of State Highway Trust Funds, to that Agency
may be withheld to pay the non-participating costs. If State approves processes,
procedures, or contract administration outside the Local Agency Guidelines that result in
items being declared non-participating, those items will not result in the withholding of
Agency's future allocations of federal funds or the future allocations of State Highway Trust
Funds.
27. Costs incurred by State and Agency for services performed in connection with any phase of
the Project shall be charged to the Proj ect, 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.
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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.
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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 com plete 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:
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 pi ans 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
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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
copies of all signed utility notifications, agreements and Utility Certification to the State Utility
Liaison.
STANDARDS
36. 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
Design Guide", 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" .
I 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" andlor guidelines provided. I 42. The standard unit of measurement for all aspects of the Project shall be English Units. All
I Project documents and products shall be in English. This includes, but is not limited to, right
of way, environmental documents, plans and speCifications, and utilities.
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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.
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:
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a) No federal appropriated funds have been paid or will be paid, by or on behalf
of the undersjgned, 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 agree ment.
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.
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