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31-09 ResolutionRECORD OF RESOLUTIONS Dayton Legal Blank. Inc., Form No. 30045 Resolcction No 31-09 Passed 20 A RESOLUTION AUTHORIZING THE CITY MANAGER TO ENTER INTO A LPA (LOCAL PUBLIC AGENCY) LOCAL-LET PROJECT AGREEMENT WITH THE OHIO DEPARTMENT OF TRANSPORTATION (ODOT) IN ORDER TO ACCEPT FUNDS FROM THE AMERICAN RECOVERY AND REINVESTMENT ACT (ARRA) DESIGNATED FOR THE REALIGNMENT OF INDUSTRIAL PARKWAY AND WIDENING OF SR 161 IMPROVEMENT PROJECT (ODOT PID NUMBER 86464) WHEREAS, the City of Dublin desires to improve traffic safety, operations and efficiencies of the roadway system in the area of the US 33/SR 161/Post Road interchange an important regional improvement; and WHEREAS, a major component in improving the interchange area is the realignment of Industrial Parkway and the widening of a portion of SR 161; and WHEREAS, the Dublin Community Plan promotes working cooperatively with surrounding jurisdictions in regional transportation planning and programming; and WHEREAS, the City of Dublin and the Ohio Department of Transportation (ODOT) have agreed to cooperatively plan, design and construct the identified transportation improvement project; and WHEREAS, ODOT has been designated as the agency to administer the Federal Highway Administration's Federal Funding programs, including the American Recovery and Reinvestment Act (ARRA) funds; and WHEREAS, it is necessary to execute the ODOT Local Public Agency Federal Local-Let Project Agreement in order to receive $1,000,000 in ARRA funds. NOW, THEREFORE, BE IT RESOLVED by the Council of the City of Dublin, State of Ohio, ~ of the elected members concurring: Section 1. The City Manager is hereby authorized to enter into a LPA Federal Local-Let Project Agreement with ODOT in order to accept ARRA funds for the construction of the Realignment of Industrial Parkway and Widening of SR 161 Improvement Project. Section 2. This resolution shall take effect upon adoption in accordance with Section 4.04(a) of the Revised Charter. Passed this ~~ day of , 2009. i y ~. Mayor -Presiding Officer Attest: ~r~~ Yliy+.~r _ ~ ,g ~r_i Clerk of Council Office of the City Manager 5200 Emerald Parkway • Dublin, OH 43017-1090 CITY OF DUBLIN.. Phone: 614-410-4400 • Fax: 614-410-4490 M e m o To: Members of Dublin City Council From: Terry Foegler, City Manager Date: June 25, 2009 U Initiated By: Barbara A. Cox, PE, Engineering Manager -Development Re: Resolutions 31-09 and 32-09 Authorizing the City Manager to Enter into Agreements to Accept American Recovery and Reinvestment Act Funds (AI2RA) Summary In April, staff submitted the necessary applications to the Ohio Department of Transportation (ODOT) requesting the US 33/SR 161/Post Road interchange project and Industrial Parkway/SR 161 improvement projects be considered for funding through the American Recovery and Reinvestment Act (ARRA). These projects were considered by both ODOT and the Mid-Ohio Regional Planning Commission (MORPC) for those ARRA firnds both agencies have been designated to manage. The City of Dublin has been awarded a grant of $1,000,000 from the MORPC sub-allocation of the ARRA funds for the Industrial Parkway/SR 161 improvements. In order to receive these funds, the City is required to execute the Memorandum of Understanding (MOU) with MORPC. The MOU states that the project is to meet ODOT requirements for design and plan development, that the fiznding can be forfeited if plan and right-of--way clearance is not received by December 2009, that MORPC will not replace the funding from other sources or fund cost overruns, and that the City will fund all other project costs and perform reporting as required by the ARRA. ODOT will administer the funds for MORPC and requests that Dublin enters into a project agreement identifying the requirements associated with the Federal funds and establishing the responsibilities for the administration of the project. A copy of the ODOT LPA (Local Public Agency) Federal Local-Let Project Agreement is attached. The ODOT agreement contains many of the same requirements of the City. This agreement requires additional specifications to be included in the City's bid document, a Disadvantaged Business Enterprise (DBE) goal to be set, job creation posting to the appropriate state websites, and monthly reporting by both the contractor and the City. Engineering, Finance and Legal staff have reviewed both agreements and have no suggested revisions to the documents. The project has been programmed in the City's Capital Improvement Program, and the City will issue debt to fund its share of the project. Costs may be added to this project due to the requirements of obtaining federal funds, including federal prevailing wage rates (versus state prevailing wage rates), disadvantaged business requirements, reporting requirements, and contract administration requirements. Staff recently met with representatives of ODOT and MORPC to discuss the status of the project and to review the requirements due to the addition of federal dollars for the funding of the project. The following schedule was detemuned at the meeting: Tracings Complete (to District 6) July 15, 2009 Sale (Bid Opening) September 24, 2009 Award October 5, 2009 Recommendation Staff recommends approval of Resolutions 31-09 and 32-09 to secure the awarded ARRA funds. Rev. 4/16/09 CFDA 20.205 UNI-SR161-12.98 PID Number 86464 Agreement Number 22586 LPA FEDERAL LOCAL-LET PROJECT AGREEMENT ** ARRA FUNDED PROJECT ** THIS AGREEMENT is made by and between the State of Ohio, Department of Transportation, hereinafter referred to as ODOT, 1980 West Broad Street, Columbus, Ohio 43223 and the City of Dublin, hereinafter referred to as the LPA, 5800 Shier-Rings Road, Dublin, Ohio 43016. 1. PURPOSE 1.1 The National Transportation Act has made available certain Federal funding for use by local public agencies. The Federal Highway Administration (hereinafter referred to as FHWA) designated ODOT as the agency in Ohio to administer FHWA's Federal funding programs. 1.2 Section 5501.03 (C) of the Ohio Revised Code provides that ODOT may coordinate its activities and enter into contracts with other appropriate public authorities to administer the design, qualification of bidders, competitive bid letting, construction, inspection, and acceptance of any projects administered by ODOT, provided the administration of such projects is performed in accordance with all applicable Federal and State laws and regulations with oversight by ODOT. 1.3 UNI-SR161-12.98, PID Number 86464 (hereinafter referred to as the PROJECT) is a transportation activity eligible to receive Federal funding, and which is further defined in the PROJECT scope. 1.4 The purpose of this Agreement is to set forth requirements associated with the Federal funds available for the PROJECT and to establish the responsibilities for the local administration of the PROJECT. 1.5 This PROJECT is funded by the American Recovery and Reinvestment Act of 2009 ("ARRA"), and subject to the specific reporting and operational requirements of that law. 2. LEGAL REFERENCES 2.1 This Agreement is authorized by the following statutes and/or policies, which are incorporated in their entirety: a. Section 5501.03(C) of the Ohio Revised Code; b. ODOT Policy No. 25-001(P), Development Process Policy for Locally-Administered Transportation Projects; c. ODOT Locally Administered Transportation Projects, Manual of Procedures; d. National Transportation Act, Title 23, U.S.C.; 23 CFR 635.105; e. ARRA, Public Law 111-5; and f. Audit Requirements of 49 CFR 18 and 2 CFR 225. 2.2 The LPA shall comply with all applicable Federal and State laws, regulations, executive orders, and applicable ODOT manuals and guidelines. This obligation is in addition to compliance with any law, regulation, or executive order specifically referenced in this Agreement. 3. FUNDING 3.1 The total cost for the PROJECT is estimated to be $7,700,000 as set forth in Attachment 1. ODOT shall provide to the LPA 100% of the eligible costs up to a maximum amount of $1,000,000 in federal ARRA funds (the "ARRA Maximum AmounY') not to exceed the original low and best bid contract amount plus up to 10% for Construction Engineering. 3.2 The LPA shall provide all other financial resources necessary to fully complete the project in excess of the ARRA Maximum Amount including but not limited to all cost overruns, contractor claims, Preliminary Engineering, Right of Way, and Construction Engineering beyond the 10% referenced in 3.1 above. 3.3 Any ARRA funds that remain after project award shall revert back to the Department. All requests for reimbursement of funds allocated under the ARRA must be submitted within six months of the close of the project, but in no event shall the request for reimbursement be submitted to ODOT later than August 31, 2015. 4. PROJECT DEVELOPMENT AND DESIGN 4.1 The LPA and ODOT agree that the LPA is qualified to administer this PROJECT and is in full compliance with all LPA participation requirements. 4.2 The LPA and ODOT agree that the LPA has received funding approval for the PROJECT from the applicable ODOT Program Manager having responsibility for monitoring such projects using the Federal funds involved. 4.3 The LPA shall design and construct the PROJECT in accordance with a recognized set of written design standards. The LPA shall (option one: follow its own formally written set of local design standards or option two: make use of ODOT's Location and Design Manual (L&D), or the appropriate AASHTO publication. Even though the LPA may use its own standards, ODOT may require the LPA to use a design based on the L&D Manual for projects that contain a high crash rate or areas of crash concentrations. Where the LPA has adopted ODOT standards for the PROJECT, the LPA shall be responsible for ensuring that any ODOT standards used for the PROJECT are current and/or updated. The LPA shall be responsible for periodically contacting the ODOT District LPA Coordinator or through the following Internet website for any changes or updates: www.dot.state.oh.us/drrc.) 4.4 The LPA shall either designate an LPA employee, who is a registered professional engineer, to act as the PROJECT Design Engineer and serve as the LPA's principal representative for attending to PROJECT responsibilities, or engage the services of a pre-qualified ODOT consultant who has been chosen using aQualification-Based Selection (QBS) process as required pursuant to Ohio Revised Code sections 153.65 through 153.71. The pre-qualified list is available on the ODOT web page at http://www.dot.state.oh.us/CONTRACT.) 4.5 If Federal funds are used for a phase of project development and the LPA executes an agreement with a consultant prior to the receipt of the "Authorization to Advertise" notification from ODOT, ODOT may terminate this Agreement and cease all Federal funding commitments. 4.6 ODOT reserves the right to move this PROJECT into a future sale year if the LPA does not adhere to the established PROJECT schedule, regardless of any funding commitments. 2 4.7 The LPA acknowledges that it must file its Plans, Estimate and Specifications package, inclusive of ODOT District review and approval, to the Office of Local projects on or before May 22, 2009 [120 day project] OR January 23, 2010 [365 day project]. 5. ENVIRONMENTAL RESPONSIBILITIES 5.1 In the administration of this PROJECT, the LPA shall be responsible for conducting any required public involvement events, for preparing all required documents, reports and other supporting materials needed for addressing applicable environmental assessment, for clearance responsibilities for the PROJECT pursuant to the National Environmental Policy Act and related regulations, including the requirements of the National Historic Preservation Act; and for securing all necessary permits. 5.2 If the LPA does not have the qualified staff to perform any or all of the respective environmental responsibilities, the LPA shall hire an ODOT Pre-qualified Consultant through a QBS process. The pre-qualified list is available on the ODOT web page at htto://www.dot.state.oh.us/CONTRACT. If the LPA hires apre-qualified consultant, the LPA shall be responsible for monitoring the consultant's activities and ensuring that the consultant is following all Federal and State laws, regulations, policies, and guidelines. 5.3 ODOT shall be responsible for the review of all environmental documents and reports, and shall complete all needed coordination activities with State and Federal regulatory agencies toward securing environmental clearance. 5.4 The LPA shall be responsible for assuring compliance with all commitments made as part of the PROJECT's environmental clearance and/or permit requirements. 5.5 The LPA shall require its consultant, selected to prepare a final environmental document pursuant to the requirements of the National Environmental Policy Act, to execute a copy of a disclosure statement specifying that the consultant has no financial or other interest in the outcome of the PROJECT. 5.6 The LPA shall provide a letter indicating the proposed Best Management Practices (BMPs) to be utilized for post construction storm water management in accordance with the Ohio EPA National Pollutant Discharge Elimination System (NPDES) Construction General Permit. If no BMPs are proposed, a letter stating concurrence is required form the Ohio EPA. 6. RIGHT OF WAY/ UTILITIES/ RAILROAD COORDINATION 6.1 All right-of-way acquisition activities shall be performed by the LPA in accordance with the Uniform Relocation Assistance and Real Property Acquisition Act of 1970 (Public Law 91-646) as amended by 49 CFR Part 24 (hereinafter referred to as Uniform Act), any related Federal regulations issued by the FHWA, and State rules, policies and guidelines issued by ODOT. 6.2 If existing and newly-acquired right of way is required for this PROJECT, the LPA shall certify that the all right of way has been acquired in conformity with Federal and State laws, regulations, policies, and guidelines. As specified in ODOT's Real Estate Policy and Procedures Manual, Section 5202.01-II-(B), any LPA staff who perform any real estate functions shall be prequalified by the ODOT's Office of Real Estate. If the LPA does not have the qualified staff to perform any or all of the respective right of way functions, the LPA shall hire an ODOT Pre-qualified Consultant through a QBS process. The LPA shall not hire the same consultant to perform both the appraisal and appraisal review functions. Appraisal review shall be performed by an independent staff or fee reviewer and shall be hired directly by the LPA. Likewise, a consultant hired to perform right of way acquisition work can not also perform both the relocation and 3 relocation review functions. Relocation review shall be performed by an independent staff or fee reviewer. 6.3 If the LPA hires apre-qualified consultant, the LPA shall be responsible for monitoring the consultant's activities and ensuring that the consultant is following all Federal and State laws, regulations, policies, and guidelines. 6.4 All relocation assistance activities shall be performed by the LPA in conformity with Federal and State laws, including the Uniform Act, and any related Federal regulations issued by the FHWA, and State rules, policies and guidelines issued by ODOT. The LPA shall not hire a consultant to perform both the relocation and relocation review functions nor shall the LPA hire asub- consultant for relocation and another sub-consultant for relocation review. Relocation review shall be performed by an independent staff or fee reviewer and shall be hired directly by the LPA. 6.5 The LPA shall provide the ODOT District Office with its certification that all right of way property rights necessary for the PROJECT are under the LPA's control, that all right of way has been cleared of encroachments, and that utility facilities have been appropriately relocated or accounted for so as not to interfere with PROJECT construction activities. ODOT shall make use of the LPA's Right of Way Certification, as well as evaluate the LPA's and/or consultant's performance of the PROJECT real estate activities under Titles II and III of the Uniform Act, and, as appropriate, certify compliance to the FHWA. The LPA shall be liable to repay to ODOT all of the Federal funds disbursed to it under this Agreement if the certification of the LPA is found to be in error or otherwise invalid. 6.6 In the administration of this PROJECT, the LPA agrees to follow all procedures described in the ODOT Utilities Manual and 23 CFR Part 645. When applicable, the LPA shall enter into a utility relocation agreement with each utility prior to the letting of construction. No reimbursable construction costs shall be incurred by the LPA prior to the receipt of the "Authorization to Advertise" notification from ODOT. If such costs are incurred, ODOT may terminate this Agreement and cease all Federal funding commitments. 6.7 The LPA shall submit all subsequent modifications to the design of the PROJECT and/or any disposal of property rights acquired as part of the PROJECT to ODOT and FHWA for approval. 6.8 The LPA shall be responsible for any necessary railroad coordination and agreements. The LPA shall comply with the provisions of Title 23 of the Code of Federal Regulations and applicable chapters of the Ohio Revised Code regarding all activities relating to Railroad-Highway projects. 7. ADVERTISING. SALE AND AWARD 7.1 The LPA shall not advertise for bids prior to the receipt of the "Authorization to Advertise" notification from ODOT. Should advertising or work commence prior to the receipt of the "Authorization to Advertise" notification, ODOT shall immediately terminate this Agreement and cease all Federal funding commitments. 7.2 Any use of sole source or proprietary bid items must be approved by the applicable ODOT district. All sole source or proprietary bid items should be brought to the attention of the LPA Coordinator as soon as possible so as not to cause a delay in the plan package submission process. Bid items for traffic signal and highway lighting projects must be in conformance with ODOT's Traffic Engineering Manual. 7.3 Once the LPA receives Federal authorization to advertise, the LPA may begin advertising activities. Advertisements shall be in accordance with local bidding requirements. Whenever local advertisement requirements differ from Federal advertisement requirements, the Federal requirements shall prevail. The PROJECT shall be advertised for three (3) consecutive weeks. 4 The period between the first legal advertising date and the bid opening date shall be a minimum of twenty-one (21) calendar days. The LPA shall submit to ODOT any addendum to be issued during the advertisement period that changes estimates or materials. ODOT shall review and approve such addendum for project eligibility. All addenda shall be distributed to all potential bidders prior to opening bids and selling the contracts. 7.4 The LPA shall incorporate ODOT's LPA Bid Template in its bid documents. The template includes Form FHWA-1273, Required Contract Provisions, a set of contract provisions and proposal notices that are required by regulations promulgated by the FHWA and other Federal agencies, which must be included in all contracts, as well as appropriate subcontracts and purchase orders. 7.5 In accordance with Executive Order 2002-13T, the LPA shall require the contractor to be enrolled in, and in good standing with, the Drug-Free Workplace Program (DFWP) or a similar program approved by the Bureau of Workers' Compensation, and require the same of any of its subcontractors. 7.6 Only pre-qualified contractors are eligible to submit bids for this PROJECT. Pre-qualification status must be in force at the time of bidding, at the time of award, and through the life of the construction contract. For work types that ODOT does not pre-qualify, the LPA must still select a qualified contractor. Subcontractors are not subject to the pre-qualification requirement. The "prime" contractor must perform no less than 30 percent of the total original contract price. The 30 percent prime requirement does not apply to design-build contracts. 7.7 In accordance with Section 153.54, et. seq. of the Ohio Revised Code, the LPA shall require that the selected contractor provide a performance and payment bond in an amount at least equal to 100 percent of its contract price as security for the faithful performance of its contract. ODOT shall be named an obligee on any bond. 7.8 Before awarding a contract to the selected contractor, the LPA shall verify either that the contractor is not subject to a finding for recovery under R.C. 9.24, or that the contractor has taken the appropriate remedial steps required under R.C. 9.24, or that the contractor otherwise qualifies under the exceptions to this section. Findings for recovery can be viewed on the Auditor of State's website at http://www.auditor.state.oh.us/WhatsNew/FFR/. If the LPA fails to so verify, ODOT may immediately terminate this Agreement and release all federal funding commitments. 7.9 The LPA is prohibited from imposing any geographical hiring preference on any bidder in the LPA's bid documents or on any successful contractor in the LPA's award or contract for the construction of the PROJECT. This includes any local legislation that may incorporate "MacBride Principles" or local ordinances such as the "Fanny Lewis Law." 7.10 After analyzing all bids for completeness, accuracy, and responsiveness, the LPA shall approve the award of the contract in accordance with laws and policies governing the LPA. Within 45 days of that approval, the LPA shall submit to ODOT notification of the project award by submitting a bid tabulation, a copy of the ordinance or resolution, and direct payment information as required in Attachment 2 of this agreement, if applicable. 8. CONSTRUCTION CONTRACT ADMINISTRATION 8.1 The LPA shall provide and maintain competent and adequate project management covering the supervision and inspection of the development and construction of the PROJECT. The LPA shall bear the responsibility of ensuring that construction conforms to the approved plans, surveys, profiles, cross sections and material specifications. If a consultant is used for engineering and/or inspection activities, the LPA must use a QBS process as required pursuant to ORC sections 153.65 through 153.71. 8.2 The LPA shall certify both the quantity and quality of material used, the quality of the work performed, and the amount of construction engineering cost, when applicable, incurred by the LPA for the eligible work on the PROJECT, as well as at the completion of construction. The LPA shall certify that the construction is in accordance with the approved plans, surveys, profiles, cross sections and material specifications or approved amendments thereto. 8.3 The Federal-aid Highway Program operates on a reimbursement basis. The LPA shall review and/or approve all invoices prior to payment and prior to requesting reimbursement from ODOT for work performed on the PROJECT. The LPA shall ensure the accuracy of any invoice in both amount and in relation to the progress made on the PROJECT. The LPA must submit to ODOT a written request for reimbursement of the Federal/State share of the expenses involved, attaching copies of all source documentation associated with paid costs. To assure prompt payment, the measurement of quantities and the recording for payment should be performed on a daily basis as the items of work are completed and accepted. 8.4 ODOT shall pay, or reimburse, the LPA or, at the request of the LPA and with concurrence of ODOT, pay directly to the LPA's construction contractor ("Contractor'), the eligible items of expense in accordance with the cost sharing provisions of this Agreement. If the LPA requests to have the Contractor paid directly, Attachment 2 to this Agreement shall be completed and submitted with the project bid tabulations and the Contractor shall be required to establish Electronic Funds Transfer with the State of Ohio. ODOT shall pay the Contractor or reimburse the LPA within thirty (30) days of receipt of the approved Contractor's invoice from the LPA. 8.5 The LPA shall notify ODOT of the filing of any mechanic's liens against the LPA's Contractor within three (3) business days of receipt of notice of lien. Failure to so notify ODOT or failure to process a mechanic's lien in accordance with the provisions of Chapter 1311 of the Ohio Revised Code may result in the termination of this Agreement. Upon the receipt of notice of a mechanic's lien, ODOT reserves the right to (1) withhold an amount of money equal to the amount of the lien that may be due and owing to either the LPA or the Contractor; (2) terminate direct payment to the affected Contractor; or (3) take both actions, until such time as the lien is resolved. 8.6 Payment or reimbursement to the LPA shall be submitted to: City of Dublin Marsha Grigsby, Finance Director 5200 Emerald Parkway Dublin, OH 43017 614-410-4420 8.7 If, for any reason, the LPA contemplates suspending or terminating the contract of the Contractor, it shall first seek ODOT's written approval. Failure to timely notify ODOT of any contemplated suspension or termination, or failure to obtain written approval from ODOT prior to suspension or termination, may result in ODOT terminating this Agreement and ceasing all federal funding commitments. 8.8 If ODOT approves any suspension or termination of the contract, ODOT reserves the right to amend its funding commitment in paragraph 3.1 and if necessary, unilaterally modify any other term of this Agreement in order to preserve its federal mandate. Upon request, the LPA agrees to assign all rights, title, and interests in its contract with the Contractor to ODOT in order to allow ODOT to direct additional or corrective work, recover damages due to errors or omissions, and to exercise all other contractual rights and remedies afforded by law or equity. 8.9 Any right, claim, interest, and/or right of action, whether contingent or vested, of the LPA, arising out of or related to any contract entered into by the LPA for the work to be performed by the Contractor on this PROJECT (the "Claim"), may be subrogated to ODOT, and ODOT shall have 6 all of the LPA's rights in and to the Claim and against any other person(s) or entity(ies) against which such subrogation rights may be enforced. The LPA shall immediately notify ODOT in writing of any Claim. The LPA further authorizes ODOT to sue, compromise, or settle any such Claim. It is the intent of the parties that ODOT be fully substituted for the LPA and subrogated to all of the LPA's rights to recover under such Claim(s). The LPA agrees to cooperate with reasonable requests from ODOT for assistance in pursuing any action on the subrogated Claim including requests for information and/or documents and/or to testify. 8.10 After completion of the PROJECT and in accordance with Title 23 United States Code 116 and applicable provisions of the Ohio Revised Code, the LPA shall maintain the PROJECT to design standards and provide adequate maintenance activities for the PROJECT, unless otherwise agreed to by ODOT. The PROJECT must remain under public ownership and authority for 20 years, unless otherwise agreed to by ODOT. If the PROJECT is not being adequately maintained, ODOT shall notify the LPA of any deficiencies and if the maintenance deficiencies are not corrected within a reasonable amount of time, ODOT may determine that the LPA is no longer eligible for future participation in any Federally-funded programs. 9. CERTIFICATION AND RECAPTURE OF FUNDS 9.1 This Agreement is subject to the determination by ODOT that sufficient funds have been appropriated by the Ohio General Assembly to the State for the purpose of this Agreement and to the certification of funds by the Office of Budget and Management, as required by Ohio Revised Code section 126.07. If ODOT determines that sufficient funds have not been appropriated for the purpose of this Agreement or if the Office of Budget and Management fails to certify the availability of funds, this Agreement or any renewal thereof will terminate on the date funding expires. 9.2 Unless otherwise directed by ODOT, if for any reason the PROJECT is not completed in its entirety or to a degree acceptable to ODOT and FHWA, the LPA shall repay to ODOT an amount equal to the total funds ODOT disbursed on behalf of the PROJECT. In turn, ODOT shall reimburse FHWA an amount equal to the total sum of Federal dollars it had received for the PROJECT. If the LPA has not repaid ODOT in full an amount equal to the total funds ODOT disbursed on behalf of the project, any funds recovered from the performance and payment bond as required under section 7.7 shall be used to offset the Federal dollars reimbursed to FHWA. 10. NONDISCRIMINATION 10.1 In carrying out this Agreement, the LPA shall not discriminate against any employee or applicant for employment because of race, religion, color, sex, national origin, ancestry, age, or disability as that term is defined in the American with Disabilities Act. The LPA shall ensure that applicants are hired and that employees are treated during employment without regard to their race, religion, color, sex, national origin, ancestry, age, or disability. Such action shall include, but not be limited to the following: employment, upgrading, demotion, or transfer; recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training including apprenticeship. 10.2 The LPA agrees to post in conspicuous places available to employees and applicants for employment, notices setting forth the provisions of this nondiscrimination clause, and in all solicitations or advertisements for employees placed by it, state that all qualified applicants shall receive consideration for employment without regard to race, religion, color, sex, national origin, ancestry, age, or disability. The LPA shall incorporate this nondiscrimination requirement within all of its contracts for any of the work on the PROJECT (other than subcontracts for standard commercial supplies or raw materials) and shall require all of its contractors to incorporate such requirements in all subcontracts for any part of such PROJECT work. 10.3 For any project in which the Engineer's Estimate exceeds $500,000, the LPA shall ensure that Disadvantaged Business Enterprises (DBEs), as defined in 49 CFR Part 26, will have an equal opportunity to participate in the performance of contracts and subcontracts financed in whole or in part with Federal funds provided in conjunction with this Agreement. To meet this requirement, subcontractors who claim to be DBEs must be certified by ODOT. The LPA shall require that all contracts and other agreements it enters into for the performance of the PROJECT contain the following specific language: Disadvantaged Business (DBE) Requirement. DBE participation goals (subcontracts, materials, supplies) have been set on this project for those certified as DBEs pursuant to Title 23, U.S.C. section 140(c) and 49 CFR, Part 26, and where applicable qualified to bid with ODOT under Chapter 5525 of the Ohio Revised Code. WAIVER PROCESS FOR DBE GOALS In the event the Contractor is unable to meet the DBE Goal placed on this project, a request for waiver of all or part of the goal may be made to the Ohio Department of Transportation through the LPA. The written request must indicate that a good faith effort was made to meet the goal and be sent to ODOT's Office of Contracts with a copy to the ODOT District LPA Coordinator. Central Office will review the submitted documentation and decide the issue within ten (10) business days. There will be no extension of the time for the project granted if the prime Contractor wishes to avail himself of this process. The LPA will be notified as to the decision. ODOT shall supply the percentage goal to the LPA upon review of the Engineer's Estimate. The LPA must obtain written, signed documentation from the contractor that the DBE goal has been satisfied prior to executing the contract with the contractor. The LPA, in turn, must provide such documentation to ODOT in order for ODOT to encumber the Federal/State funds. 10.4 During the performance of this contract, the LPA, for itself, its assignees and successors in interest (hereinafter referred to as the "LPA") agrees as follows: (1) Compliance with Regulations: The LPA will comply with the regulations relative to nondiscrimination in Federally-assisted programs of the United States Department of Transportation (hereinafter "U.S. DOT') Title 49, Code of Federal Regulations, Part 21, as they may be amended from time to time, (hereinafter referred to as the "Regulations"), which are herein incorporated by reference and made a part of this contract. In addition, the LPA will comply with the provisions of the Americans with Disabilities Act, Section 504 of the Rehabilitation Act, FHWA Guidance, and any other Federal, State, and/or local laws, rules and/or regulations (hereinafter referred to as "ADA/504"). (2) Nondiscrimination: The LPA will not discriminate either directly or indirectly on the grounds of race, color, national origin, sex, or disability as prohibited by section 21.5 of the Regulations, including employment practices when the contract covers a program set forth in Appendix B of the Regulations, as well as the ADA/504 regulations. (3) Information and Reports: The LPA will provide all information and reports required by the Regulations or directives issued pursuant thereto, and will permit access to its books, records, accounts, other sources of information, and its facilities as may be determined by the STATE or the Federal Highway Administration (hereinafter "FHWA") to be pertinent to ascertain compliance with such Regulations, orders and instructions. Where any information required of the LPA is in the exclusive possession of another who fails or refuses to furnish this information, the LPA will so certify to the STATE or FHWA, as appropriate, and will set forth what efforts it has made to obtain the information. 8 (4) Sanctions for Noncompliance: In the event of the LPA's noncompliance with the nondiscrimination provisions of this contract, the STATE will impose such contract sanctions as it or FHWA may determine to be appropriate, including, but not limited to: and/or (a) withholding of payments to the LPA under the contract until the LPA complies, (b) cancellation, termination or suspension of the contract, in whole or in part. 10.5 The LPA must further comply with the reporting and operational requirements of ARRA as reflected in section 16 below. 11. DATA. PATENTS AND COPYRIGHTS -PUBLIC USE 11.1 The LPA shall ensure that any designs, specifications, processes, devices or other intellectual properties specifically devised for the PROJECT by its consultants or contractors performing work become the property of the LPA, and that when requested, such designs, specifications, processes, devices or other intellectual properties shall become available to ODOT and FHWA with an unrestricted right to reproduce, distribute, modify, maintain, and use. The LPA's consultants and contractors shall not seek or obtain copyrights, patents, or other forms of proprietary protection for such designs, specifications, processes, devices or other intellectual properties, and in providing them to the PROJECT shall relinquish any such protections should they exist. 11.2 The LPA shall not allow its consultants or contractors to utilize within the development of the PROJECT any copyrighted, patented or similarly protected design, specification, process, device or other intellectual property unless the consultant or contractor has provided for such use by suitable legal agreement with the owner of such copyright, patent or similar protection. A consultant or contractor making use of such protected items for the PROJECT shall indemnify and save harmless the LPA and any affected third party from any and all claims of infringement on such protections, including any costs, expenses, and damages which it may be obliged to pay by reason of infringement, at any time during the prosecution or after the completion of work on the PROJECT. 11.3 In the case of patented pavements or wearing courses where royalties, licensing and proprietary service charges, exacted or to be exacted by the patentees, are published and certified agreements are filed with the LPA, guaranteeing to prospective bidders free unrestricted use of all such proprietary rights and trademarked goods upon payment of such published charges, such patented pavements or wearing courses may be specifically designated in the proposal and competition secured upon the item exclusive of the patent or proprietary charges. 12. TERMINATION; DEFAULT AND BREACH OF CONTRACT 12.1 Neglect or failure of the LPA to comply with any of the terms, conditions, or provisions of this Agreement, including misrepresentation of fact, may be an event of default, unless such failure or neglect are the result of natural disasters, strikes, lockouts, acts of public enemies, insurrections, riots, epidemics, civil disturbances, explosions, orders of any kind of governments of the United States or State of Ohio or any of their departments or political subdivisions, or any other cause not reasonably within the LPA's control. If a default has occurred, ODOT may terminate this agreement with thirty (30) days written notice, except that if ODOT determines that the default can be remedied, then ODOT and the LPA shall proceed in accordance with section 12.3 of this Agreement. 12.2 If notified by ODOT in writing that it is in violation of any of the terms, conditions, or provisions of this Agreement, and a default has occurred, the LPA shall have thirty (30) days from the date of 9 such notification to remedy the default or, if the remedy will take in excess of thirty (30) days to complete, the LPA shall have thirty (30) days to satisfactorily commence a remedy of the causes preventing its compliance and curing the default situation. Expiration of the thirty (30) days and failure by the LPA to remedy, or to satisfactorily commence the remedy of, the default whether payment of funds has been fully or partially made, shall result in ODOT, at its discretion, declining to make any further payments to the LPA, or in the termination of this Agreement by ODOT. If this Agreement is terminated, the LPA may be liable to repay to ODOT all of the Federal funds disbursed to it under this Agreement. 12.3 The LPA, upon receiving a notice of termination from ODOT for default, shall cease work on the terminated activities covered under this Agreement. If so requested by ODOT, the LPA shall assign to ODOT all its rights, title, and interest to any contracts it has with any consultants or contractors. Otherwise, the LPA shall terminate all contracts and other agreements it has entered into relating to such covered activities, take all necessary and appropriate steps to limit disbursements and minimize any remaining costs. At the request of ODOT, the LPA may be required to furnish a report describing the status of PROJECT activities as of the date of its receipt of notice of termination, including results accomplished and other matters as ODOT may require. 12.4 No remedy herein conferred upon or reserved by ODOT is intended to be exclusive of any other available remedy, but each and every such remedy shall be cumulative and shall be in addition to every other remedy given under this Agreement or now or hereafter existing at law or in equity. No delay or omission to exercise any right or option accruing to ODOT upon any default by the LPA shall impair any such right or option or shall be construed to be a waiver thereof, but any such right or option may be exercised from time to time and as often as may be deemed expedient by ODOT. 13. THIRD PARTIES AND RESPONSIBILITIES FOR CLAIMS 13.1 Nothing in this Agreement shall be construed as conferring any legal rights, privileges, or immunities, or imposing any legal duties or obligations, on any person or persons other than the parties named in this Agreement, whether such rights, privileges, immunities, duties, or obligations be regarded as contractual, equitable, or beneficial in nature as to such other person or persons. Nothing in this Agreement shall be construed as creating any legal relations between the Director and any person performing services or supplying any equipment, materials, goods, or supplies for the PROJECT sufficient to impose upon the Director any of the obligations specified in section 126.30 of the Revised Code. 13.2 The LPA hereby agrees to accept responsibility for any and all damages or claims for which it is legally liable arising from the actionable negligence of its officers, employees or agents in the performance of the LPA's obligations made or agreed to herein. 14. 14.1 15. NOTICE Notice under this Agreement shall be directed as follows: If to the LPA: If to ODOT: Mr. Paul Hammersmith Director of Engineering City of Dublin 5800 Shier-Rings Road Dublin, OH 43016 GENERAL PROVISIONS Thomas J. Wester Attention: Tracy L. Allen ODOT, District Six 400 East William Street Delaware, OH 43015 10 15.1 Audit Requirements: The LPA is responsible for compliance with 49 CFR 18, Uniform Administrative Requirements for Grant and Cooperative Agreements to State and Local Governments and 2 CFR 225, Cost Principles for State, Local and Indian Tribal Governments. These federal regulations establish minimally acceptable requirements for financial accounting systems, cost standards, and reporting that must be maintained in order to administer afederally- funded project. The LPA shall further comply with all the audit and operational requirements of ARRA as specified in Section 16 below. 15.2 Record Retention: The LPA, when requested at reasonable times and in a reasonable manner, shall make available to the agents, officers, and auditors of ODOT and the United States government, its books, documents, and records relating to the LPA's obligations under this Agreement. All such books, documents, and records shall be kept for a period of at least three years after FHWA approves the LPA's final Federal voucher for reimbursement of PROJECT expenses. In the event that an audit-related dispute should arise during this retention period, any such books, documents, and records that are related to the disputed matter shall be preserved for the term of that dispute. The LPA shall require that all contracts and other agreements it enters into for the performance of the PROJECT contain the following specific language: As the LPA, ODOT or the United States government may legitimately request from time to time, the contractor agrees to make available for inspection and/or reproduction by the LPA, ODOT or United States government, all records, books, and documents of every kind and description that relate to this contract. Nothing contained in this Agreement shall in any way modify the LPA's legal duties and obligations to maintain and/or retain its records under Ohio public records laws. 15.3 Ohio Ethics Laws: In accordance with Executive Order 2007-01 S, the LPA, by signing this document, certifies: (1) it has reviewed and understands Executive Order 2007-01 S, (2) has reviewed and understands the Ohio ethics and conflict of interest laws, and (3) will take no action inconsistent with those laws and this order. The LPA understands that failure to comply with Executive Order 2007-01 S is, in itself, grounds for termination of this contract and may result in the loss of other contracts with the State of Ohio. 15.4 [Conditional] State Property Drug-Free Workplace Compliance: In accordance with applicable State and Federal laws, rules, and policy, the LPA shall make a good faith effort to ensure that its employees and its contractors will not purchase, transfer, use, or possess alcohol or a controlled substance while working on State property. 15.5 Governing Law: This Agreement and any claims arising out of this Agreement shall be governed by the laws of the State of Ohio. Any provision of this Agreement prohibited by the laws of Ohio shall be deemed void and of no effect. Any litigation arising out of or relating in any way to this Agreement or the performance thereunder shall be brought only in the courts of Ohio, and the LPA hereby irrevocably consents to such jurisdiction. To the extent that ODOT is a party to any litigation arising out of or relating in any way to this Agreement or the performance thereunder, such an action shall be brought only in a court of competent jurisdiction in Franklin County, Ohio. 15.6 Assignment: Neither this Agreement nor any rights, duties, or obligations described herein shall be assigned by either party hereto without the prior express written consent of the other party. 15.7 Merger and Modification: This Agreement and its attachments constitute the entire Agreement between the parties. All prior discussions and understandings between the parties are superseded by this Agreement. Unless otherwise noted herein, this Agreement shall not be altered, modified, or amended except by a written agreement signed by both parties hereto. 11 15.8 Severabiiity: If any provision of this Agreement is held to be invalid or unenforceable by a court of competent jurisdiction, such holding shall not affect the validity or the ability to enforce the remainder of this Agreement. All provisions of this Agreement shall be deemed severable. 15.9 Signatures: Any person executing this Agreement in a representative capacity hereby represents that he/she has been duly authorized by his/her principal to execute this Agreement on such principal's behalf. COMPLIANCE WITH ARRA 16.1 LPA Reporting Requirements: The LPA shall complete a form FHWA-1589 for each month from the date of the Notice to Proceed until completion of the contract or September, 2012 whichever occurs sooner. Copies of form FHWA-1589 and instructions can be accessed via the Departments website at the following web address: http://www.dot.state.oh.us/divisions/communications/pages/FederalStimulusProiects.asox The LPA shall report the direct, on-the-project jobs for their workforce active during the reporting month. These job data include employees actively engaged in projects who work on the jobsite, in the project office, in the home office or telework from a home or other alternative office location. This also includes any engineering personnel, inspectors, sampling and testing technicians, and lab technicians performing work directly in support of the ARRA funded project. The LPA shall submit the completed form FHWA-1589 by the 10th of each month for the previous month's employment information to the project engineer AND submit the completed information online at the following address: http://www.dot.state.oh.us/divisions/communications/pages/FederalStimulusProiects aspx The initial report shall be submitted to the Project Engineer within 30 days of execution. Subsequent reports shall be submitted to the Project Engineer no later than 10 days after each report month. 16.2. LPA Contractor Reporting Requirements: The LPA shall require its prime Contractor complete a form FHWA-1589 for each month from the date of the Notice to Proceed until completion of the contract or September, 2012 whichever occurs sooner. The LPA shall be responsible to make certain its prime Contractor reports their firm as well as every Subcontractors data for every tier of Subcontractor. Copies of form FHWA-1589 and instructions can be accessed via the Departments website at the following web address: http://www.dot.state.oh.us/divisions/communications/pages/FederalStimulusProiects aspx The LPA shall require its prime Contractor to report the direct, on-the-project jobs for their workforce and the workforce of their Subcontractors active during the reporting month. These job data include employees actively engaged in projects who work on the jobsite, in the project office, in the home office or telework from a home or other alternative office location. This also includes any engineering personnel, inspectors, sampling and testing technicians, and lab technicians performing work directly in support of the ARRA funded project. This does not include material suppliers. T2 The LPA shall require its prime Contractor to submit the completed form FHWA-1589 by the 10tH of each month for the previous month's employment information to the project engineer AND submit the completed information online at the following address: http://www.dot.state.oh.us/divisions/communications/pages/FederalStimulusProjects.aspx The initial report shall be submitted to the Project Engineer within 30 days of execution. Subsequent reports shall be submitted to the Project Engineer no later than 10 days after each report month. In addition, the Contractor certification requirements of 109.09 will include an attestation to the Contractors submission of these required forms. 16.3 Accessibility to Records and Project Sites: a. Section 902 of the American Recovery and Reinvestment Act (ARRA) of 2009 requires that each contract awarded using ARRA funds must include a provision that provides the U.S. Comptroller General and his representatives with the authority to: (1) Examine any records of the Contractor or any of its Subcontractors, or any State or local agency administering such contract, that directly pertain to, and involve transactions relating to, the contract or subcontract; and (2) Interview any officer or employee of the Contractor or any of its Subcontractors, or of any State or local government agency administering the contract, regarding such transactions. b. The Comptroller General and his representatives shall have the authority and rights as provided under Section 902 of the ARRA with respect to this contract, which is funded with funds made available under the ARRA. Section 902 further states that nothing in this section shall be interpreted to limit or restrict in any way any existing authority of the Comptroller General. c. Section 1515(a) of the American Recovery and Reinvestment Act (ARRA) of 2009 (ARRA) provides authority for any representatives of an inspector general to examine any records or interview any employee or officers working on this contract. The Contractor is advised that representatives of the inspector general have the authority to examine any record and interview any employee or officer of the Contractor, its Subcontractors or other firms working on this contract. Section 1515(b) further provides that nothing in this section shall be interpreted to limit or restrict in any way any existing authority of an inspector general. d. Sections b. and c. above shall be included verbatim in all of the LPA's agreements with its Contractors, its Contractor's agreements with its Subcontractors from whom the Contractor acquires goods or services in its execution of the ARRA funded Work. 16.4 Collection of DUNS Numbers: The LPA shall require its Contractor to submit its unique nine-digit number issued by Dun & Bradstreet followed by the optional digit DUNS Plus number (reported for example as "999999999.9999") along with its signed and executed contract in accordance with Section 103 of the Construction and Material Specifications. 16.5 Additional Notice Requirements Regarding Affirmative Action to Ensure Equal Employment Opportunity. 13 a. The LPA's attention is called to the affirmative action obligations required by the specifications set forth in 23 CFR Part 230, 41 CFR Part 60, Executive Order 11246, Section 503, and the affirmative action provisions of Vietnam Era Veterans' Readjustment Assistance Act (VEVRAA) of 1974. Utilization goals applicable to the project, expressed in percentages, for minority and female participation for each construction craft can be found on ODOT's website at httq://www.dot.state.oh.us/contract/census.htm. These goals are based on 2000 census data and represent the area, per craft, minority and female availability pool. Minority and female utilization obligations by craft per county (applicable to project): httq://www.dot.state.oh.us/CONTRACT/Census/CountvAvailablity-ByTrade pdf The LPA, its Contractor and each subcontractor are required to complete the Employment Utilization Reporting of Work Hour Data tracking report CR-6. This form can be found on ODOT's website at: httq://www.dot.state.oh.us/divisions/communications/pages/FederalStimulusProjects as~x This report will be required on a MONTHLY basis for the duration of the Project. The "month" will begin at the start of the actual work on the Project. The Department requires that report CR-6 be completed identifying the hours worked per craft and the number of employees per craft for this Project. Each subcontractor will forward the completed report CR-6 to the Contractor, who in turn will be responsible for forwarding a compiled report for its entire work force and that of all subcontractors to the LPA who shall forward the report to ODOT. The consolidated reports shall include all craft hours and total numbers of employees for all construction work originated by the Contractor for this project. Within thirty (30) days of the Pre-Construction Conference for this Project, the LPA and its Contractor shall identify to ODOT the estimated TOTAL hours to be worked by each trade and by race and gender on this project. Please submit this information to: Ohio Department of Transportation 1980 West Broad Street Attn: Office of Civil Rights Columbus, Ohio 43223 b. The LPA and its Contractor is required to appoint an EEO/Affirmative Action (EEO/AA) Manager for the Project. The EEO/AA Manager shall have overall responsibility for the monitoring of EEO/AA compliance by the LPA and its Contractor and by all subcontractors working on this project. The above requirements do not have separate pay items. All costs associated with these requirements shall be bid as part of the Contractor's general administration or overhead costs for this project. c. For the ARRA projects, the Department will set a Statewide goal for the number of OJT participants. This shall be a goal for each LPA and its Contractor to aspire to meet. 16.6 Misc: If LPA, its Contractor or any Subcontractor fails to comply with any of the provisions contained in this section, the Department may terminate this contract, pursue debarment of the Contractor or Subcontractor and/or withhold or suspend pay estimates after written notice and a reasonable opportunity to comply has been provided. 14 IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of the day and year last written below. LPA: CITY OF DUBLIN By: Terry Foegler City Manager Date: STATE OF OHIO OHIO DEPARTMENT OF TRANSPORTATION By: Date: 15 Jolene Molitoris by Thomas Wester Z Q W NVN 1.~ W M~ T W ~ W v ~ a a o ° ° o o J ~ ~ O 00 ~ O O O O ti Q ~ ~ 0 Z LL W Q c Q ~ U Q ~ ti ~ ~ O Z ~ W c ~ O O Q T > > + 2 ~ w. c ~ O O O O Q O O T T Q ~ Z J Z J 0 ~ \ O T O T O T O T O T O T Q J ~ O O O O O O ~ Q O CO O O CO to w ~ U w ~ =o ~ ~ ~ ~ ~ J W o ~ ~ ~ Z ~ a ~ W Q z ti Z Q a O U ~ OU Q ~ ~ ~ z O ~ Q ~ ~ z O U ~ U ~ z OU O U ~ 0 Z ~ W O U ~ 0 ~ ~ Y UNI-SR161-12.98 PID Number 86464 Agreement Number 22586 Attachment 2 DIRECT PAYMENT OF CONTRACTOR At the direction of the LPA and upon approval of ODOT, payments for work performed under the terms of the Agreement by the LPA's contractor shall be paid directly to the contractor in the prorata share of Federal participation. The invoice package shall be prepared by the LPA as previously defined in this agreement, and shall indicate that the payment is to be made to the contractor. In addition, the invoice must state the contractor's name, mailing address and Federal tax ID. Separate invoices shall be submitted for payments that are to be made to the contractor and those that are to be made to the LPA. The City of Dublin requests that all payments for the Federal share of the construction costs of this agreement performed by be paid (CONTRACTOR S NAME directly to (CONTRACTOR S NAME Contractor Name: Federal Tax ID: Mailing Address: LPA signature LPA Name: City of Dublin Federal Tax ID: 31-6400452 Mailing Address: City of Dublin 5800 Shier-Rings Road Dublin, OH 43016 Approved, ODOT signature 17