Loading...
HomeMy WebLinkAbout081720_ca02Department of Public Works O Consent Agenda Page 1 of 1 Jefferson County Board of Commissioners Agenda Request To: Board of Commissioners Philip Morley, County Administrator From: Monte Reinders, P.E., Public Works Director/County Engineer Agenda Date: August 17, 2020 Subject: Federal Lands Access Program Project Memorandum of Agreement Upper Hoh Road/Olympic National Park MP 0.0 - 12.0 County Road No. 914207 County Project No. 18019410 Statement of Issue: Execution of the Federal Lands Access Program (FLAP) Memorandum of Agreement with FHWA-Western Federal Lands Highway Division (WFLHD) for the Upper Hoh Road/Olympic National Park MP 0.0 - 12.0 Project. Analysis/Strategic Goals/Pro's Et Con's: This agreement replaces the Federal Lands Access Program Match Agreement dated September 11, 2014 between FHWA-WFL and Jefferson County. It is necessary to execute this agreement in order to proceed with construction of the project, scheduled for 2021-2022. Fiscal Impact/Cost Benefit Analysis: The County match will be made through toll credits and $62,485 from the road fund which has already been expended for right-of- way acquisition. Recommendation: Public Works recommends the Board execute the Project Memorandum of Agreement with WFLHD by signing and returning all three orginals to Public Works. One fully executed original will be returned to the Board after execution by WFLHD. Department Contact: Mark Thurston, P.E., Project Manager, 385-9217. Reviewed By: Date Federal Lands Access Program Project Memorandum of Agreement Instructions, Tips, and Tricks Federal Lands Access Program Project Memorandum of Agreement Project / Facility Name: Upper Hoh River Road Phase 2, WA JEFF 91420(1) Project Route: Hoh River Road State: Washington County: Jefferson Owner of Federal Lands to which the Project Provides Access: Olympic National Park (FLMA) Entity with Title or Maintenance Responsibility for Facility: Jefferson County (LPA) Type of Work: The project is to include: • Preliminary Engineering including environmental studies to support an environmental decision: o Geotechnical Investigation o Bank Stabilization design o Bridge design (Canyon Creek and Tower Creek) o Hydraulic Modeling o Culvert design for MP 4.38 o R/W Acquisition o Utility Agreements o Environmental Studies o Permitting o NEPA Decision • Construction Engineering / Contract Administration This Agreement does not obligate (commit to) the expenditure of Federal funds nor does it commit the parties to complete the project. Rather, this agreement sets forth the respective responsibilities as the project proceeds through the project development process and construction. This agreement replaces Federal Lands Access Program Match Agreement dated: 09/11/14 between FHWA-WFL, and Jefferson County. Upper Hoh River Road Phase 2, WA JEFF 91420(1) Page 1 of 33 July 23, 2020 Parties to this Agreement: Jefferson County, Federal Highway Administration, the Western Federal Lands Highway Division (FHWA-WFL). The Program Decision Committee approved this project on 11/18/2013 AGREED: Jefferson County Date Western Federal Lands Highway Division, FHWA-WFL Date Upper Hoh River Road Phase 2, WA JEFF 91420(1) Page 2 of 33 July 23, 2020 A. PURPOSE OF THIS AGREEMENT: This agreement documents the intent of the parties and sets forth the anticipated responsibilities of each party in the development, construction, and continued maintenance of the subject project. The purpose of the agreement is to identify and assign responsibilities for Project Development, Contract Advertisement, and Construction Administration as appropriate for this project, and to ensure continued maintenance of the facility for public use if improvements are made. The parties understand that any final decision as to design or construction will not be made until after the environmental analysis required under the National Environmental Policy Act (NEPA) is completed (this does not prevent the parties from assigning proposed design criteria to be studied in the NEPA process.) Any decision to proceed with the design and construction of the project will depend on the availability of appropriations at the time of obligation and other factors such as issues raised during the NEPA process, a natural disaster that changes the need for the project, a change in Congressional direction, or other relevant factors. If Federal Lands Access Program (FLAP) funds are used for the development or construction of this project, Jefferson County agrees to provide a matching share equal to 13.5% of the total cost of the project, as detailed more fully in Section J below. When agency other than FHWA-WFL will be expending FLAP funds, the parties agree to execute a separate obligating document. No reimbursement will be made for expenses incurred prior to execution of the obligating document. B. AUTHORITY: This Agreement is entered into between the signatory parties pursuant to the provisions of 23 U.S.C. 204. C. JURISDICTION AND MAINTENANCE COMMITMENT: Jefferson County has jurisdictional authority to operate and maintain the existing facility and will operate and maintain the completed project at its expense. Maintenance responsibilities will include permit monitoring and maintenance. It is anticipated that a portion of these costs will be shared with WFL through a cooperative agreement. D. FEDERAL LAND MANAGEMENT AGENCY COORDINATION: Jefferson County has coordinated project development with the Olympic National Park. The Olympic National Park support of the project is documented in the Project Proposal by endorsing the proposal. Each party to this agreement who has a primary role in NEPA, design or construction should coordinate their activities with the Olympic National Park. E. PROJECT BACKGROUND / SCOPE: Upper Hoh River Road Phase 2, WA JEFF 91420(1) Page 3 of 33 July 23, 2020 This project is intended to stabilize 3 segments of eroding bank along the Hoh River, replace one existing bridge, replace one undersized deep culvert with a bridge at Canyon Creek, provide mitigation as required, and includes placing a new fish passage culvert near MP 4.3. The locations are located between milepost 3.3 and 10.5 within Jefferson County. The first two sites located between MP 3.3 and 4.4 will be treated as one site for bank stabilization. The next two sites are bridge replacement at Tower Creek and bank stabilization immediately up river from the bridge. The final site is located at Canyon Creed near MP 10.2. This location currently has a pipe that is buried approximately 30 feet below the roadway surface that will be replaced with a bridge. Mitigation for bank stabilization takes place in several locations within the corridor and consists of creating small wetland and placing for engineered log jams. The culvert replacement at MP 4.3 upsizes the existing culvert from a 5' diameter culvert to a 20' concrete box culvert. The bank stabilization sites are within the existing programmed budget, but the two bridge sites are likely over the current programmed amount and are the lowest priority should funding be insufficient. It is unknown today what the costs will be (dependent on the contractor bids), but ultimately the intent is to improve all of the sites. The mitigation site(s) identified are required by the Army Corps of Engineers and the Washington Department of Fish and Wildlife for impacts associated with the in water work. The project will be designed in accordance with the American Association of State Highway & Transportation Officials (AASHTO) Policy on Geometric Design of Highway and Streets, current addition. F. PROJECT BUDGET: This is the budget for the project and anticipated construction/engineering costs based on information developed to date. Federal Lands Access Program funds in conjunction with matching funds provided by Jefferson County and the Olympic National Park will fund this project as detailed in Section K. Upper Hoh River Road Phase 2, WA JEFF 91420(1) Page 4 of 33 July 23, 2020 item Total Current Comments Preliminary Engineering including scoping and NEPA (PE) $2,300,000 Includes mitigation designs, hydraulics modeling, permit applications, EA, public meetings, and design Construction (CN) — Base (bank stabilization and mitigation) $9,530,000 Based on current engineers estimate Tower Creek Bridge $3,310,185 Based on current engineers estimate Canyon Creek Bridge $3,172,433 Based on current engineers estimate Construction Engineering (CE) $1,021,000 Construction Modifications (CM) Contingency $1,000,000 A portion of this will be for mitigation costs —which will likely be included in the base contract TOTAL $20,381,150* Current anticipated project cost 'Does not include R/W expenditures provided by Jefferson County. G. ROLES AND RESPONIBILITIES: Jefferson County • Will be responsible for project activities identified in Section P. • Will appoint a representative who will be the primary contact for FHWA-WFL's Project Manager • Will provide appropriate match to all FLAP funds expended on the project even if the project is terminated prior to completion • Will be responsible for the acquisition of any rights -of -way and/or easements necessary to complete the project. • Upon completion of construction, a final inspection will be convened by FHWA-WFL with attendees from Jefferson County, and if it is determined the project has been constructed in substantial conformity with approved plans and specifications, Jefferson County will provide written confirmation of its acceptance of the constructed project. FHWA-WFL • Will be responsible for Federal NEPA document and decision. • Preliminary design activities needed • Mitigation designs • Permitting as it relates to in stream work • SHPO clearances • Construction administration • Upon completion of construction, permits will be transferred to Jefferson County to assume the new owner responsibility and liability for all the terms and conditions in the permit, including permit fees. FHWA-WFL will provide a copy of the Stormwater Pollution Upper Hoh River Road Phase 2, WAJEFF 91420(1) Page 5 of 33 July 23, 2020 Prevention Plan (SWPPP) to the new owner prior to the effective date of the proposed transfer. FHWA-WFL will be responsible for the Permit Transfer Notification Fee. H. ROLES AND RESPONSIBILITIES— MILESTONE SCHEDULE: Res�aOle Lead , RroduSvlce Schedule Start/Finish FHWA-WFL, 30% Design November 2016 FHWA-WFL NEPA documentation May 2017 FHWA-WFL NEPA Decision July 2017 FHWA-WFL 9S% PS&E March 2018 FHWA-WFL Advertise/Award September 2020/December 2020 FHWA-WFL Construction March 2021/October 2023 I. PROPOSED DESIGN STANDARDS: Preferred design alternatives will be determined through the NEPA process. Criteria Standard Roadway Design Manual AASHTO — A Policy on Geometric Design Functional Classification Rural Collector Surface Type Asphalt Design Volume 650 ADT Design exceptions to standards, will be documented and sent to the Jefferson County for concurrence. J. FUNDING: The project is largely funded by the Federal Lands Access Program administered by FHWA-WFL, with matching funds provided by the National Park Service and Jefferson County. Upper Hoh River Road Phase 2, WA JEFF 91420(1) Page 6 of 33 July 23, 2020 ittl>un�lflhg Preliminary Engineering including scoping and NEPA (PE) $1,325,180 Construction (CN) — FLAP $9,677,115 Construction (CN) — Match $942,705 Construction (CN) - PLHD $1 115 508 Construction Engineering (CE) $1,021,000 Construction Modifications (CM) Contingency $1,000,000 TOTAL $15,080,803* *This is the funding amount currently available. The design and CN costs are expected to exceed this amount (as shown in the Budget Section above). The project will be broken into schedules/options to maximize the amount of construction. Furlong source runt % Comments Federal Lands Access Funds 13,023,295 63.7% Local Matching Share (Jefferson County) $62,485 0.03% R/W costs (cash) Local Matching Share (Jefferson County) 1,754,700 Toll Credit Local Matching Share (National Park Service) $942,705 4.6% NPS Cash Total Matching Funds $1,005,190 cash $1,754,700 toll credit 13.5% 13.5% of total projected costs Total Projected Costs $20,443,635 Anticipated Shortfall $5,300,347 K. MATCHING SHARE REQUIREMENTS: The purpose of this section is to document the intent of Jefferson to meet its match requirement for the subject project as authorized under section 23 USC 201(b)(7)(B). All FLAP expenditures associated with this project will need to be matched by a Non- Federal source, by other Federal funds other than those made available under Titles 23 and 49 of the United States Code, or by funds made available under 23 U.S.C. 202 and 203. The matching requirement under the FAST Act will be met by Jefferson County with support from National Park Service. Upper Hoh River Road Phase 2, WA JEFF 91420(1) Page 7 of 33 July 23, 2020 Jefferson County, the National Park Service and other agencies have committed to the project. The forms of match shall be those consistent with the 'Federal -Aid Guidance Non -Federal Matching Requirements' and as approved by FHWA-WFL. In the state of Washington, 13.S% of the total project cost. This project is authorized to use a Tapered Match. Under this approach, the non -Federal match is imposed over the entire project rather than individual progress payments. Timing of all fund transfers are specified in the Funding Plan. Tapered Match is authorized because it will result in an earlier completion date. Estimated costs and fiscal year (FY) for the funding are based on the best budgeting and scheduling information known at the time. The final match will be determined based on actual expenditures at the conclusion of project work. Matching cash funds in FHWA-WFL receipt may need to be supplemented, or returned, once actual expenditures are determined. As noted under Modifications, if costs increase over the amount within this agreement, FHWA-WFL will consult with the agency(ies) providing Match before granting approval. Maintain all project records, including source documentation for all expenditures and in -kind contributions, for a period of three (3) years from the date of final acceptance. If any litigation claim, negotiation, or audit has been started before expiration of the three-year period, the records shall be retained until completion of the action and resolution of all issues that arise from it. The following agencies have agreed to contribute the amounts shown which will reduce the federal share by the same amount. The Funding Plan is as follows: AgOc' y Phase !Form Due Valuie Comments Jefferson PE Toll Credit 9/1/20 $248,015 For anticipated PE County (less R/W cost) Jefferson CN Toll Credit 9/1/20 TBD Will vary depending County on awarded value Jefferson PE In -Kind Paid $62,485 R/W Acquisition County Olympic CN CASH 9/1/20 $942,705 National Park L. PROJECT TEAM MEMBERS — POINT OF CONTACT: The following table provides the points of contact for this project. They are to be the first persons to deal with any issues or questions that arise over the implementation of each party's role and responsibility for this agreement. Upper Hoh River Road Phase 2, WA JEFF 91420(1) Page 8 of 33 July 23, 2020 NAME / TITLE ORGANIZATION TELEPHONE NO. / E-MAIL Monte Reinders, Public Jefferson County 360-385-9242/ Works Director mreinders@do.jefferson.wa.us Mark Thurston, Project Jefferson County 360-385-9210/ Manager mthurston@co.jefferson.wa.us Jon Christensen, Program National Park Service 415-623-2278 Manager PWR Jon—christensen@nps.gov Lisa Turecek, Chief of Olympic National Park 360-565-3150 Facilities and Maintenance Lisa.turecek@nps.gov Kirk Loftsgaarden, Project Federal Highway Administration- 360-619-7512, Manager Western Federal Lands Highway Division kirk.loftsgaarden@dot.gov Brent Coe, Project Federal Highway Administration- 360-619-7744, Manager Branch Chief Western Federal Lands Highway Division Brent.Coe@dot.gov M. CHANGES / AMENDMENTS / ADDENDUMS: The agreement may be modified, amended, or have addendums added by mutual agreement of all parties. The change, amendment, or addendum must be in writing and executed by all of the parties. The types of changes envisioned include, but are not limited to, changes that significantly impact scope, schedule, or budget; changes to the local match, either in type or responsibility; change that alter the level of effort or responsibilities of a party. The parties commit to consider suggested changes in good faith. Failure to reach agreement on changes may be cause for termination of this agreement. A change in composition of the project team members does not require the agreement to be amended. It is the responsibility of the project team members to recognize when changes are needed and to make timely notifications to their management in order to avoid project delivery delays. N. ISSUE RESOLUTION PROCEDURES MATRIX: Issues should be resolved at the lowest level possible. The issue should be clearly defined in writing and understood by all parties. Escalating to the next level can be requested by any party. When an issue is resolved, the decision will be communicated to all levels below. Jefferson cownty National Perk FHWA-V IFL Time Service Mark Thurston Lisa Turecek Kirk Loftsgaarden 15 Days Monte Reinders Jon Christensen Brent Coe 15 Days Upper Hoh River Road Phase 2, WA JEFF 91420(1) Page 9 of 33 July 23, 2020 O. TERMINATION: This agreement may be terminated by mutual written consent of all parties. This agreement may also be terminated if either the NEPA process or funding availability requires a change and the parties are not able to agree to the change. Any termination of this agreement shall not prejudice any rights or obligations accrued to the parties prior to termination. If Federal access funds have been expended prior to termination, the party responsible for the match agrees to provide a match in the applicable percentage of the total amount expended on the project prior to the termination. Upper Hoh River Road Phase 2, WA JEFF 91420(1) Page 10 of 33 July 23, 2020 v Q }'S 0 0 a a aJ G1 i. 72 � •o L •0 L rYs n. CL to •L C O cr U C f6 N C O + ca LA ++ U C NC L C U LJ o a cc v c oc to tA a N O N M N T 7 m m 0 t--1 a--1 D) CD fc a N N t a cc 0 � O K t � 0 = U- L L. cu CL Q Q ATTACHMENT 1 2 CFR 200 Common Rule Requirements and other legal requirements Upper Hoh River Road Phase 2, WA JEFF 91420(1) Page 12 of 33 July 23, 2020 A. GENERAL TERMS AND CONDITIONS Background. To promote accelerated and efficient delivery of projects that benefit Federal Land Management Agencies, the Secretary has exercised his discretion under 23 U.S.C. § 201(a) and § 204(a)(3) to apply Title 23 U.S.C. Chapter 1 requirements (Federal Aid requirements) to Federal Lands Access Projects delivered by State Departments of Transportation (DOTS) and local public agencies that are evaluated and certified by State DOTs to deliver Federal Aid projects. In instances where a local public agency is not certified to deliver Federal -aid projects and Federal Lands Access projects are delivered by the local public agency cooperatively with Federal Lands Highway Division office oversight, the government -wide Common Rule (2 CFR 200) will be applied. This cooperative relationship will enable the FLH to identify any federal law issues in cooperation with the local public agency which may arise in the project development and delivery process. 1. The Agreement provides funds on a reimbursable basis to the Servicing Agency for the project described in the Access Program Project Memorandum of Agreement. 2. The Government's liability to make payments to the Servicing Agency under the Agreement is limited to those funds obligated by the Government under the Agreement as indicated herein and by any subsequent amendments agreed to in writing by all parties. 3. The Servicing Agency agrees to abide by and comply with all terms and conditions of the Agreement and to abide by, and comply with, all requirements of applicable law, including those specified in this Attachment, which are considered as an integral part of the Agreement. 4. In the case of any inconsistency or conflict between the specific provisions of the Agreement and this Attachment, such inconsistency or conflict shall be resolved by giving preference to the Agreement. 5. The Servicing Agency shall be responsible for ensuring that the Project is designed and/or constructed in accordance with the Agreement, and all applicable Federal laws, regulations and policies of the Federal Highway Administration ("FHWA" also referred to herein as the "Government"). 6. Reimbursement of costs incurred pursuant to the Agreement will be made pursuant to and in accordance with 2 CFR Part 200 and the provisions of such regulations and procedures as the Government may prescribe. Determination of allowable costs incurred by the Servicing Agency under the Agreement shall be made in accordance with applicable government -wide cost principles under 2 CFR 200. Closeout of the Agreement shall be based upon a determination that all applicable administrative actions and all required work of the Agreement have been completed in accordance with 2 CFR Part 200. Upon the Government's review of all financial, performance, and other reports required as a condition of the Agreement, the Government may make any upward or downward adjustments to the allowable costs in accordance with 2 CFR 200. 7. The Servicing Agency agrees to carry out and complete the Project without undue delays and in accordance with the terms of the Agreement, including the Project Schedule set out in the Agreement, or in the Access Program Project Memorandum of Agreement if no Schedule is included in this Agreement, and comply with such regulations and procedures as the Government may prescribe. 8. The Servicing Agency agrees to retain all documents relevant to the Project for a period of three years from completion of the Project and receipt of final reimbursement from the Government. The Upper Hoh River Road Phase 2, WA JEFF 91420(1) Page 13 of 33 July 23, 2020 Servicing Agency agrees to furnish the Government, upon request, all documents and records pertaining to the Project. 9. The Government is subject to the Freedom of Information Act (FOIA). The Servicing Agency should therefore be aware that all materials submitted by the Servicing Agency related to the Agreement will become agency records and thus are subject to FOIA and to public release through individual FOIA requests. 10. The Government shall not be responsible or liable for any damage to property or any injury to persons that may arise from, or be incident to, performance or compliance with this the Servicing Agency's work under the Agreement. The Government will be responsible for damages or injuries caused by the negligence of its own employees, to the extent permitted under the Federal Tort Claims Act, 28 U.S.C. 2671- 2680. 11. To the extent that the State has not already enacted legislation regarding texting while driving, the Government encourages the Servicing Agency to adopt and enforce workplace safety policies to decrease crashes caused by distracted drivers including policies that bar text messaging while driving company -owned or rented vehicles, or government -owned, leased, or rented vehicles or privately -owned vehicles when on official government business or when performing any work for or on behalf of the Government. See Executive Order 13513 "Federal Leadership on Reducing Text Messaging While Driving", Oct. 1, 2009 (available at http:/Iedocket.access.gpo.gov/2009/E9-24203.htm ) and DOT Order 3902.10 "Text Messaging While Driving", Dec. 30, 2009, as implemented by Financial Assistance Policy Letter (No. FAP-2010-01, Feb. 2, 2010, available at http://www.dot.gov/sites/dot.dev/files/docs/FAPL 2010-01.pdf)This includes, but is not limited to, the Servicing Agency: a. considering new rules and programs or re-evaluating existing programs to prohibit text messaging while driving; b. conducting education, awareness, and other outreach for employees about the safety risks associated with texting while driving; and c. encouraging voluntary compliance with the agency's text messaging policy while off duty. The Servicing Agency is encouraged to insert the substance of this clause in all contracts and subcontracts. B. APPLICABLE FEDERAL LAWS AND REGULATIONS By entering into the Agreement, the Servicing Agency assures, certifies, and agrees to comply with all applicable Federal laws, regulations, policies, guidelines, and requirements as they relate to the use of Federal funds for this Project including, but not limited to, the following: General Federal Legislation • Fair Labor Standards Act - 29 U.S.C. § 201, et seq. • Hatch Act - 5 U.S.C. §§ 1501, et seq. • Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970 Title -42 U.S.C. §§4601, et seq. • National Historic Preservation Act of 1966 — 16 U.S.C. § 470, et seq. • Archaeological Resources Protection Act — 16 U.S.C. 470aa, et seq. • Native American Graves Protection and Repatriation Act - 25 U.S.C. § 3001, et seq. • National Environmental Policy Act of 1969 - 42 U.S.C. §§ 4321, et seq. Upper Hoh River Road Phase 2, WA JEFF 91420(1) Page 14 of 33 July 23, 2020 • Wild and Scenic Rivers Act, P.L. 90-542, as amended —16 U.S.C. §§ 1271, et seq. • Federal Water Pollution Control Act, as amended - 33 U.S.C. §§ 1251-1376 • Clean Air Act — 42 U.S.C. § 7401, et seq. • Single Audit Act of 1984 - 31 U.S.C. §§ 7501, et seq. • Americans with Disabilities Act of 1990 - 42 U.S.C. § 12101, et seq. • Section 504 of the Rehabilitation Act of 1973, as amended - 29 U.S.C. § 794 • Title VI of the Civil Rights Act of 1964 - 42 U.S.C. §§ 2000d et seq. • Limitation on Use of Appropriated Funds to Influence Certain Federal Contracting and Financial Transactions — 31 U.S.C. § 1352 • Magnuson -Stevens Fishery Conservation and Management Act — 16 U.S.C. § 1855 • Farmlands Protection Policy Act of 1981— 7 § U.S.C. 4201 • Noise Control Act of 1972 — 42 U.S.C. § 4901, et seq. • Section 4(f) of the Department of Transportation Act of 1966, 49 U.S.C. 303 and 23 U.S.C. § 138 • Resource Conservation and Recovery Act of 1976 (RCRA), as amended -- 42 U.S.C. §§ 6901, et seq. • Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA), as amended --42 U.S.C. §§ 9601-9657 • Safe Drinking Water Act -- 42 U.S.C. §§ 300f-300j-6 • Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act of 1976 —42 U.S.C. § 6901, et seq. • Migratory Bird Treaty Act 16 U.S.C. § 760c-760g • The Federal Funding Transparency and Accountability Act of 2006, as amended (Pub. L. 109-282, as amended by section 6202 of Public Law 110-252) • Cargo Preference Act of 1954 — 46 U.S.C. § 55305 • Buy America Act — 23 U.S.C. § 313 (see http://www.fhwa.dot.gov/construction/contracts/buyam ga.cfm) • Nondiscrimination — 23 U.S.C. § 140 Upper Hoh River Road Phase 2, WAJEFF 91420(1) Page 15 of 33 July 23, 2020 General Federal Regulations • Suspension and Debarment — 2 CFR Parts Part 180 • Non -procurement Suspension and Debarment — 2 CFR Part 1200 • External Programs — 23 CFR Part 230 • Manual on Uniform Traffic Control Devices — 23 CFR Part 655 • Environmental Impact and Related Procedures — 23 CFR Part 771 • Procedures for Abatement of Highway Traffic and Construction Noise — 23 CFR Part 772 • Procedures Implementing Section 4(f) of the Department of Transportation Act — 23 CFR Part 774 • DOT's oversight of DOJ's ADA regulations for non -transit programs, including the ADA Accessibility Guidelines, required by the DOJ regulations at — 28 CFR Part 35 • Procedures for predetermination of wage rates — 29 CFR Part 1 • Contractors and subcontractors on public building or public work financed in whole or part by loans or grants from the United States — 29 CFR Part 3 • Labor standards provisions applicable to contracts governing federally financed and assisted construction (also labor standards provisions applicable to non -construction contracts subject to the Contract Work Hours and Safety Standards Act) — 29 CFR Part 5 • Permitting Requirements under the National Pollutant Discharge Elimination System — 40 CFR Part 122. • Office of Federal Contract Compliance Programs, Equal Employment Opportunity, Department of Labor (Federal and federally assisted contracting requirements) — 41 CFR Parts 60, et seq. • Uniform administrative requirements, cost principles, and audit requirements for Federal Awards — 2 CFR Part 200 • New Restrictions on Lobbying — 49 CFR Part 20 • Nondiscrimination in Federally Assisted Programs of the Department of Transportation —Effectuation of Title VI of the Civil Rights Act of 1964 — 49 CFR Part 21 • Uniform relocation assistance and real property acquisition for Federal and Federally assisted programs — 49 CFR Part 24 • Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance-49 CFR Part 25 • Participation by Disadvantaged Business Enterprises in Department of Transportation Financial Assistance Programs —49 CFR Part 26 • Nondiscrimination on the Basis of Handicap in Programs and Activities Receiving or Benefiting from Federal Financial Assistance-49 CFR Part 27 • Enforcement of Nondiscrimination on the Basis of Handicap in Programs or Activities Conducted by the Department of Transportation — 49 CFR Part 28 • Denial of public works contracts to suppliers of goods and services of countries that deny procurement market access to U.S. contractors — 49 CFR Part 30 • Government -wide Requirements for Drug -Free Workplace (Financial Assistance) — 49 CFR Part 32 • DOT's implementing ADA regulations for transit, including the ADA Accessibility Guidelines in Part 37, Appendix A-49 CFR Parts 37 and 38 • Procedures for Transportation Workplace Drug and Alcohol Testing Programs — 49 CFR Part 40 • 23 C.F.R. Part 710 applies unless otherwise agreed to by FHWA Upper Hoh River Road Phase 2, WA JEFF 91420(1) Page 16 of 33 July 23, 2020 The Servicing Agency, when contracting for work to be performed under this Agreement, will include in the prime contract the applicable provisions required under 2 CFR 200.326. The Servicing Agency, when contractingfor construction services, shall ensure that all laborers and mechanics employed by contractors or subcontractors on the construction work shall be paid wages at rates not less than those prevailing on the same type of work on similar construction in the immediate locality as determined by the Secretary of Labor in accordance with sections 3141, 3146, and 3147 of title 40. C. ASSURANCES AND CERTIFICATIONS TITLE VI ASSURANCE (Implementing Title VI of the Civil Rights Act of 1964, as amended) ASSURANCE CONCERNING NONDISCRIMINATION IN FEDERALLY -ASSISTED PROGRAMS AND ACTIVITIES RECEIVING OR BENEFITING FROM FEDERAL FINANCIAL ASSISTANCE (Implementing the Rehabilitation Act of 1973, as amended, and the Americans With Disabilities Act, as amended) 49 CFR Parts 21, 25, 27, 37 and 38 The United States Department of Transportation (USDOT) Standard Title VI/Non-Discrimination Assurances DOT Order No. 1050.2A By entering into the Agreement, the Servicing Agency (also herein referred to as the "Recipient"), HEREBY AGREES THAT, as a condition to receiving any Federal funds from the U.S. Department of Transportation (DOT), through the Federal Highway Administration (FHWA), is subject to and will comply with the following: Statutory/Regulatory Authorities • Title VI of the Civil Rights Act of 1964 (42 U.S.C. § 2000d et seq., 78 stat. 252), (prohibits discrimination on the basis of race, color, national origin); • 49 CFR Part 21 (entitled Non-discrimination In Federally -Assisted Programs Of The Department Of Transportation —Effectuation Of Title VI Of The Civil Rights Act Of 1964); • 28 CFR section 50.3 (U.S. Department of Justice Guidelines for Enforcement of Title VI of the Civil Rights Act of 1964); The preceding statutory and regulatory cites hereinafter are referred to as the "Acts" and "Regulations," respectively. General Assurances In accordance with the Acts, the Regulations, and other pertinent directives, circulars, policy, memoranda, and/or guidance, the Servicing Agency hereby gives assurance that it will promptly take any measures necessary to ensure that: Upper Hoh River Road Phase 2, WA JEFF 91420(1) Page 17 of 33 July 23, 2020 "No person in the United States shall, on the grounds of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be otherwise subjected to discrimination under any program or activity,"for which the Recipient receives Federal financial assistance from DOT, including the FHWA. The Civil Rights Restoration Act of 1987 clarified the original intent of Congress, with respect to Title VI and other Non-discrimination requirements (The Age Discrimination Act of 1975, and Section 504 of the Rehabilitation Act of 1973), by restoring the broad, institutional -wide scope and coverage of these non- discrimination statutes and requirements to include all programs and activities of the Servicing Agency, so long as any portion of the program is Federally assisted. Specific Assurances More specifically, and without limiting the above general Assurance, the Servicing Agency agrees with and gives the following Assurances with respect to its receipt of funds for this project: 1. The Servicing Agency agrees that each "activity," "facility," or "program," as defined in §§ 21.23 (b) and 21.23 (e) of 49 CFR § 21 will be (with regard to an "activity") facilitated, or will be (with regard to a "facility") operated, or will be (with regard to a "program") conducted in compliance with all requirements imposed by, or pursuant to the Acts and the Regulations. 2. The Servicing Agency will insert the following notification in all solicitations for bids and requests for proposals for work or materials, regardless of funding source: a. "The Servicing Agency, in accordance with the provisions of Title VI of the Civil Rights Act of 1964 (78 Stat. 25Z 42 U.S.C. §§ 2000d to 2000d-4) and the Regulations, hereby notifies all bidders that it will affirmatively ensure that any contract entered into pursuant to this advertisement, disadvantaged business enterprises will be afforded full and fair opportunity to submit bids in response to this invitation and will not be discriminated against on the grounds of race, color, or national origin in consideration for an award." The Servicing Agency will insert the clauses of Appendix A of this Assurance in every contract or agreement subject to the Acts and the Regulations. Upper Hoh River Road Phase 2, WA JEFF 91420(1) Page 18 of 33 July 23, 2020 4. The Servicing Agency will insert the clauses of Appendix B of this Assurance, as a covenant running with the land, in any deed from the United States effecting or recording a transfer of real property, structures, use, or improvements thereon or interest therein to a Recipient. S. That where the Servicing Agency receives Federal financial assistance to construct a facility, or part of a facility, the Assurance will extend to the entire facility and facilities operated in connection therewith. 6. That where the Servicing Agency receives Federal financial assistance in the form, or for the acquisition of real property or an interest in real property, the Assurance will extend to rights to space on, over, or under such property. 7. That the Servicing Agency will include the clauses set forth in Appendix C and Appendix D of this Assurance, as a covenant running with the land, in anyfuture deeds, leases, licenses, permits, or similar instruments entered into by the Servicing Agency with other parties: for the subsequent transfer of real property acquired or improved under the applicable activity, project, or program; and b. for the construction or use of, or access to, space on, over, or under real property acquired or improved under the applicable activity, project, or program. 8. That this Assurance obligates the Servicing Agency or any transferee for the longer of the following periods: the period during which the property is used for a purpose for which the Federal funds were extended, or for another purpose involving the provision of similar services or benefits; or the period during which the Servicing Agency retains ownership or possession of the property. The Servicing Agency will provide for such methods of administration for the program as are found by the Secretary of Transportation or the official to whom he/she delegates specific authority to give reasonable guarantee that it, other recipients, sub -recipients, grantees, contractors, subcontractors, consultants, transferees, successors in interest, and other parties funded in whole or part from the funds provided under this Agreement will comply with all requirements imposed or pursuant to the Acts, the Regulations, and this Assurance. 10. The Servicing Agency agrees that the United States has a right to seek judicial enforcement with regard to any matter arising under the Acts, the Regulations, and this Assurance. By signing the Agreement, the Servicing Agency also agrees to comply (and require any sub- recipients, contractors, successors, transferees, and/or assignees to comply) with all applicable provisions governing the FHWA's access to records, accounts, documents, information, facilities, and staff. The Servicing Agency also recognizes that it must comply with any program or compliance reviews, and/or complaint investigations conducted by the FHWA. The Servicing Agency must keep records, reports, and submit the material for review upon request to FHWA, or its designee in a timely, complete, and accurate way. Upper Hoh River Road Phase 2, WA JEFF 91420(1) Page 19 of 33 July 23, 2020 Additionally, the Servicing Agency must comply with all other reporting, data collection, and evaluation requirements, as prescribed by law or detailed in program guidance. The Servicing Agency gives this ASSURANCE in consideration of and for obtaining any Federal funds, and/or discounts, or other Federal -aid and Federal financial assistance extended after the date hereof to the recipients by the U.S. Department of Transportation. This ASSURANCE is binding on the Servicing Agency, contractors, subcontractors and their subcontractors', transferees, successors in interest, and any other participants in the funds provided under this Agreement. APPENDIX A During the performance of this contract, the contractor, for itself, its assignees, and successors in interest (hereinafter referred to as the "contractor") agrees as follows: 1. Compliance with Regulations: The contractor (hereinafter includes consultants) will comply with the Acts and the Regulations relative to Non-discrimination in Federally -funded programs of the U.S. Department of Transportation, Federal Highway Administration (FHWA), as they may be amended from time to time, which are herein incorporated by reference and made a part of this contract. 2. Non-discrimination: The contractor, with regard to the work performed by it during the contract, will not discriminate on the grounds of race, color, or national origin in the selection and retention of subcontractors, including procurements of materials and leases of equipment. The contractor will not participate directly or indirectly in the discrimination prohibited by the Acts and the Regulations, including employment practices when the contract covers any activity, project, or program set forth in Appendix B of 49 CFR Part 21. 3. Solicitations for Subcontracts, Including Procurements of Materials and Equipment: In all solicitations, either by competitive bidding, or negotiation made by the contractor for work to be performed under a subcontract, including procurements of materials, or leases of equipment, each potential subcontractor or supplier will be notified by the contractor of the contractor's obligations under this contract and the Acts and the Regulations relative to Non-discrimination on the grounds of race, color, or national origin. 4. Information and Reports: The contractor will provide all information and reports required by the Acts, the Regulations, and 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 Servicing Agency or the FHWA to be pertinent to ascertain compliance with such Acts, Regulations, and instructions. Where any information required of a contractor is in the exclusive possession of another who fails or refuses to furnish the information, the contractor will so certify to the Servicing Agency or the FHWA, as appropriate, and will set forth what efforts it has made to obtain the information. Upper Hoh River Road Phase 2, WAJEFF 91420(1) Page 20 of 33 July 23, 2020 Sanctions for Noncompliance: In the event of a contractor's noncompliance with the Non- discrimination provisions of this contract, the Servicing Agency will impose such contract sanctions as it or the FHWA may determine to be appropriate, including, but not limited to: withholding payments to the contractor under the contract until the contractor complies; and/or cancelling, terminating, or suspending a contract, in whole or in part. 6. Incorporation of Provisions: The contractor will include the provisions of paragraphs one through six in every subcontract, including procurements of materials and leases of equipment, unless exempt by the Acts, the Regulations and directives issued pursuant thereto. The contractor will take action with respect to any subcontract or procurement as the Servicing Agency or the FHWA may direct as a means of enforcing such provisions including sanctions for noncompliance. Provided, that if the contractor becomes involved in, or is threatened with litigation by a subcontractor, or supplier because of such direction, the contractor may request the Servicing Agency to enter into any litigation to protect the interests of the Servicing Agency. In addition, the contractor may request the United States to enter into the litigation to protect the interests of the United States. APPENDIX B CLAUSES FOR TRANSFER OF REAL PROPERTY ACQUIRED OR IMPROVED UNDER THE ACTIVITY, FACILITY, OR PROGRAM The following clauses will be included in deeds, licenses, leases, permits, or similar instruments entered into by the Servicing Agency under the terms of the Agreement: 1. The (grantee, lessee, permittee, etc. as appropriate) for himself/herself, his/her heirs, personal representatives, successors in interest, and assigns, as a part of the consideration hereof, does hereby covenant and agree [in the case of deeds and leases add "as a covenant running with the land"] that: In the event facilities are constructed, maintained, or otherwise operated on the property described in this (deed, license, lease, permit, etc.) for a purpose for which a U.S. Department of Transportation activity, facility, or program is extended or for another purpose involving the provision of similar services or benefits, the (grantee, licensee, lessee, permittee, etc.) will maintain and operate such facilities and services in compliance with all requirements imposed by the Acts and Regulations (as may be amended) such that no person on the grounds of race, color, or national origin, will be excluded from participation in, denied the benefits of, or be otherwise subjected to discrimination in the use of said facilities. With respect to licenses, leases, permits, etc., in the event of breach of any of the above Non- discrimination covenants, the Servicing Agency will have the right to terminate the (lease, license, permit, etc.) and to enter, re-enter, and repossess said lands and facilities thereon, and hold the same as if the (lease, license, permit, etc.) had never been made or issued.* Upper Hoh River Road Phase 2, WA JEFF 91420(1) Page 21 of 33 July 23, 2020 With respect to a deed, in the event of breach of any of the above Non-discrimination covenants, the Servicing Agency will have the right to enter or re-enter the lands and facilities thereon, and the above described lands and facilities will there upon revert to and vest in and become the absolute property of the Servicing Agency and its assigns.* (*Reverter clause and related language to be used only when it is determined that such a clause is necessary to make clear the purpose of Title VI.) APPENDIX C CLAUSES FOR CONSTRUCTION/USE/ACCESS TO REAL PROPERTY ACQUIRED UNDER THE ACTIVITY, FACILITY OR PROGRAM The following clauses will be included in deeds, licenses, permits, or similar instruments/agreements entered into by Servicing Agency pursuant to the provisions of this Agreement: The (grantee, licensee, permittee, etc., as appropriate) for himself/herself, his/her heirs, personal representatives, successors in interest, and assigns, as a part of the consideration hereof, does hereby covenant and agree (in the case of deeds and leases add, "as a covenant running with the land") that (1) no person on the ground of race, color, or national origin, will be excluded from participation in, denied the benefits of, or be otherwise subjected to discrimination in the use of said facilities, (2) that in the construction of any improvements on, over, or under such land, and the furnishing of services thereon, no person on the ground of race, color, or national origin, will be excluded from participation in, denied the benefits of, or otherwise be subjected to discrimination, (3) that the (grantee, licensee, lessee, permittee, etc.) will use the premises in compliance with all other requirements imposed by or pursuant to the Acts and Regulations, as amended, set forth in this Assurance. 2. With respect to (licenses, leases, permits, etc.), in the event of breach of any of the above Non- discrimination covenants, the Servicing Agency will have the right to terminate the (license, permit, etc., as appropriate) and to enter or re-enter and repossess said land and the facilities thereon, and hold the same as if said (license, permit, etc., as appropriate) had never been made or issued.* 3. With respect to deeds, in the event of breach of any of the above Non-discrimination covenants, the Servicing Agency will there upon revert to and vest in and become the absolute property of the Servicing Agency and its assigns.* (*Reverter clause and related language to be used only when it is determined that such a clause is necessary to make clear the purpose of Title VI.) Upper Hoh River Road Phase 2, WA JEFF 91420(1) Page 22 of 33 July 23, 2020 APPENDIX D During the performance of this contract, the contractor, for itself, its assignees, and successors in interest (hereinafter referred to as the "contractor") agrees to comply with the following non-discrimination statutes and authorities; including but not limited to: Pertinent Non -Discrimination Authorities: • Title VI of the Civil Rights Act of 1964 (42 U.S.C. § 2000d et seq., 78 stat. 252), (prohibits discrimination on the basis of race, color, national origin); and 49 CFR Part 21. • The Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, (42 U.S.C. § 4601), (prohibits unfair treatment of persons displaced or whose property has been acquired because of Federal or Federal -aid programs and projects); • Federal -Aid Highway Act of 1973, (23 U.S.C. § 324 etseq.), (prohibits discrimination on the basis of sex); • Section 504 of the Rehabilitation Act of 1973, (29 U.S.C. § 794 et seq.), as amended, (prohibits discrimination on the basis of disability); and 49 CFR Part 27; • The Age Discrimination Act of 1975, as amended, (42 U.S.C. § 6101 et seq.), (prohibits discrimination on the basis of age); • Airport and Airway Improvement Act of 1982, (49 USC § 471, Section 47123), as amended, (prohibits discrimination based on race, creed, color, national origin, or sex); • The Civil Rights Restoration Act of 1987, (PL 100-209), (Broadened the scope, coverage and applicability of Title VI of the Civil Rights Act of 1964, The Age Discrimination Act of 1975 and Section 504 of the Rehabilitation Act of 1973, by expanding the definition of the terms "programs or activities" to include all of the programs or activities of the Federal -aid recipients, sub -recipients and contractors, whether such programs or activities are Federally funded or not); • Titles II and III of the Americans with Disabilities Act, which prohibit discrimination on the basis of disability in the operation of public entities, public and private transportation systems, places of public accommodation, and certain testing entities (42 U.S.C. §§ 12131 — 12189) as implemented by Department of Transportation regulations at 49 CFR parts 37 and 38; • The Federal Aviation Administration's Non-discrimination statute (49 U.S.C. § 47123) (prohibits discrimination on the basis of race, color, national origin, and sex); • Executive Order 12898, Federal Actions to Address Environmental Justice in Minority Populations and Low -Income Populations, which ensures discrimination against minority populations by discouraging programs, policies, and activities with disproportionately high and adverse human health or environmental effects on minority and low-income populations; Executive Order 13166, Improving Access to Services for Persons with Limited English Proficiency, and resulting agency guidance, national origin discrimination includes discrimination because of limited English proficiency (LEP). To ensure compliance with Title VI, you must take reasonable steps to ensure that LEP persons have meaningful access to your programs (70 Fed. Reg. at 74087 to 74100); Upper Hoh River Road Phase 2, WAJEFF 91420(1) Page 23 of 33 July 23, 2020 Title IX of the Education Amendments of 1972, as amended, which prohibits you from discriminating because of sex in education programs or activities (20 U.S.C. 1681 et seq). A. ASSURANCE OF DISCLOSURE OF LOBBYING ACTIVITIES Certification for Contracts, Grants, Loans, and Agreements The person signing this Agreement for the Servicing Agency certifies, to the best of his or her knowledge and belief, that: No Federal appropriated funds have been paid or will be paid, by or on behalf of the undersigned, to any person for influencing or attempting to influence an officer or employee of any 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 grant agreement, and the extension, continuation, renewal, amendment, or modification of any Federal contract, grant, loan, or grant agreement. 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 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 grant agreement, the undersigned shall complete and submit Standard Form-LLL (Rev. 7-97), "Disclosure of Lobbying Activities," in accordance with its instructions. The undersigned shall require that the language of this certification be included in the award documents for all subawards at all tiers (including subcontracts and contracts under grants, loans and grant agreements) and that all subcontractors shall certify and disclose accordingly. 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 31 U.S.C. § 1352, title. 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. B. CERTIFICATION REGARDING DRUG -FREE WORKPLACE REQUIREMENTS The Servicing Agency certifies that it will, or will continue, to provide a drug -free workplace by: 1. Publishing a statement notifying employees that the unlawful manufacture, distribution, dispensing, possession or use of a controlled substance is prohibited in the Servicing Agency's workplace, and specifying the actions that will be taken against employees for violation of such prohibition. 2. Establishing an ongoing drug -free awareness program to inform employees about: a. The dangers of drug abuse in the workplace; b. The Servicing Agency's policy of maintaining a drug -free workplace; PROJECT NUMBER/NAME Page 24 of 37 July 23, 2020 c. Any available drug counseling, rehabilitation, and employee assistance programs; and, d. The penalties that may be imposed upon employees for drug abuse violations occurring in the workplace; 3. Making it a requirement that each employee to be engaged in the performance of work supported by the Agreement be given a copy of the statement required by paragraph 1. 4. Notifying the employee in the statement required by paragraph 1 that, as a condition of employment supported by the Agreement, the employee will: a. Abide by the terms of the statement; and b. Notify the employer in writing of his or her conviction for a violation of a criminal drug statute occurring in the workplace no later than five calendar days after such conviction. 5. Notifying the agency in writing, within ten calendar days after receiving notice under paragraph 4.b. from an employee or otherwise receiving actual notice of conviction. Employers of convicted employees must provide notice, including position title, to FHWA. Notice shall include the order number of the Agreement. 6. Taking one of the following actions, within 30 days of receiving notice under paragraph 4(b), with respect to any employee who is so convicted: a. Taking appropriate personnel action against such an employee, up to and including termination, consistent with the requirements of the Rehabilitation Act of 1973, as amended, or b. Requiring such employee to participate satisfactorily in a drug abuse assistance or rehabilitation program approved for such purposes by a Federal, State or local health, law enforcement, or other appropriate agency. 7. Making a good faith effort to continue to maintain a drug -free workplace through implementation of paragraphs 1, 2, 3, 4, 5, and 6. 8. The Servicing Agency may, but is not required to, provide the site for the performance of work done in connection with the Agreement. For the provision of services pursuant to the Agreement, workplaces include outstations, maintenance sites, headquarters office locations, training sites and any other worksites where work is performed that is supported by the Agreement. If the Servicing Agency does so, the Servicing Agency shall identify the Places of Performance by listing the street address, city, county, state, zip code. Also identify if there are workplaces on file that are not identified in this section of the Agreement. C. CERTIFICATION REGARDING DEBARMENT, SUSPENSION, AND OTHER RESPONSIBILITY MATTERS -- PRIMARY COVERED TRANSACTIONS 2 CFR Parts 180, 1200, 48 CFR Part 9, and 49 CFR Part 32 These assurances and certifications are applicable to all construction contracts, design -build contracts, subcontracts, lower -tier subcontracts, purchase orders, lease agreements, consultant contracts or any other Upper Hoh River Road Phase 2, WA JEFF 91420(1) Page 25 of 33 July 23, 2020 covered transaction requiring FHWA approval or that is estimated to cost $25,000 or more — as defined in 2 CFR Parts 180 and 1200, and 48 CFR Part. 9. By entering into this Agreement the Servicing Agency is providing the assurances and certifications for First Tier Participants and Lower Tier Participants as set out below. 1. Instructions for Certification — First Tier Participants: a. The prospective first tier participant is providing the certification set out below. b. The inability of a person to provide the certification set out below will not necessarily result in denial of participation in this covered transaction. The prospective first tier participant shall submit an explanation of why it cannot provide the certification set out below. The certification or explanation will be considered in connection with the department or agency's determination whether to enter into this transaction. However, failure of the prospective first tier participant to furnish a certification or an explanation shall disqualify such a person from participation in this transaction. c. The certification in this clause is a material representation of fact upon which reliance was placed when the contracting agency determined to enter into this transaction. If it is later determined that the prospective participant knowingly rendered an erroneous certification, in addition to other remedies available to the Federal Government, the contracting agency may terminate this transaction for cause of default. d. The prospective first tier participant shall provide immediate written notice to the contracting agency to whom this proposal is submitted if any time the prospective first tier participant learns that its certification was erroneous when submitted or has become erroneous by reason of changed circumstances. e. The terms "covered transaction," "debarred," "suspended," "ineligible," "participant," "person," "principal," and "voluntarily excluded," as used in this clause, are defined in 2 C.F.R. Parts 180 and 1200. "First Tier Covered Transactions" refers to any covered transaction between a recipient or subrecipient of Federal funds and a participant (such as the prime or general contractor). "Lower Tier Covered Transactions" refers to any covered transaction under a First Tier Covered Transaction (such as subcontracts). "First Tier Participant" refers to the participant who has entered into a covered transaction with a recipient or subrecipient of Federal funds (such as the prime or general contractor). "Lower Tier Participant" refers to any participant who has entered into a covered transaction with a First Tier Participant or other Lower Tier Participants (such as subcontractors and suppliers). f. The prospective first tier participant agrees by submitting this proposal that, should the proposed covered transaction be entered into, it shall not knowingly enter into any lower tier covered transaction with a person who is debarred, suspended, declared ineligible, or voluntarily excluded from participation in this covered transaction, unless authorized by the department or agency entering into this transaction. Upper Hoh River Road Phase 2, WA JEFF 91420(1) Page 26 of 33 July 23, 2020 g. The prospective first tier participant further agrees by submitting this proposal that it will include the clause titled "Certification Regarding Debarment, Suspension, Ineligibility and Voluntary Exclusion -Lower Tier Covered Transactions," provided bythe department or contracting agency, entering into this covered transaction, without modification, in all lower tier covered transactions and in all solicitations for lower tier covered transactions exceeding the $25,000 threshold. h. A participant in a covered transaction may rely upon a certification of a prospective participant in a lower tier covered transaction that is not debarred, suspended, ineligible, or voluntarily excluded from the covered transaction, unless it knows that the certification is erroneous. A participant is responsible for ensuring that its principals are not suspended, debarred, or otherwise ineligible to participate in covered transactions. To verify the eligibility of its principals, as well as the eligibility of any lower tier prospective participants, each participant may, but is not required to, check the Excluded Parties List System website (https://www.epis.gov/), which is compiled by the General Services Administration. i. Nothing contained in the foregoing shall be construed to require the establishment of a system of records in order to render in good faith the certification required by this clause. The knowledge and information of the prospective participant is not required to exceed that which is normally possessed by a prudent person in the ordinary course of business dealings. j. Except for transactions authorized under paragraph (f) of these instructions, if a participant in a covered transaction knowingly enters into a lower tier covered transaction with a person who is suspended, debarred, ineligible, or voluntarily excluded from participation in this transaction, in addition to other remedies available to the Federal Government, the department or agency may terminate this transaction for cause or default. Z. Certification Regarding Debarment, Suspension, Ineligibility and Voluntary Exclusion — First Tier Participants: a. The prospective first tier participant certifies to the best of its knowledge and belief, that it and its principals: 1. Are not presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from participating in covered transactions by any Federal department or agency; 2. Have not within a three-year period preceding this proposal been convicted of or had a civil judgment rendered against them for commission of fraud or a criminal offense in connection with obtaining, attempting to obtain, or performing a public (Federal, State or local) transaction or contract under a public transaction; violation of Federal or State antitrust statutes or commission of embezzlement, theft, forgery, bribery, falsification or destruction of records, making false statements, or receiving stolen property; Upper Hoh River Road Phase 2, WA JEFF 91420(1) Page 27 of 33 July 23, 2020 3. Are not presently indicted for or otherwise criminally or civilly charged by a governmental entity (Federal, State or local) with commission of any of the offenses enumerated in paragraph a.2. of this certification; and 4. Have not within a three-year period preceding this application/proposal had one or more public transactions (Federal, State or local) terminated for cause or default. b. Where the prospective participant is unable to certify to any of the statements in this certification, such prospective participant shall attach an explanation to this proposal. 3. Instructions for Certification -Lower Tier Participants: (Applicable to all subcontracts, purchase orders and other lower tier transactions requiring prior FHWA approval or estimated to cost $25,000 or more - 2 C.F.R. Parts 180 and 1200) a. The prospective lower tier participant is providing the certification set out below. b. The certification in this clause is a material representation of fact upon which reliance was placed when this transaction was entered into. If it is later determined that the prospective lower tier participant knowingly rendered an erroneous certification, in addition to other remedies available to the Federal Government, the department, or agency with which this transaction originated may pursue available remedies, including suspension and/or debarment. c. The prospective lower tier participant shall provide immediate written notice to the person to which this proposal is submitted if at anytime the prospective lower tier participant learns that its certification was erroneous by reason of changed circumstances. d. The terms "covered transaction," "debarred," "suspended," "ineligible," "participant," "person," "principal," and "voluntarily excluded," as used in this clause, are defined in 2 CFR Parts 180 and 1200. You may contact the person to which this proposal is submitted for assistance in obtaining a copy of those regulations. "First Tier Covered Transactions" refers to any covered transaction between a recipient and subrecipient of Federal funds and a participant (such as the prime or general contract). "Lower Tier Covered Transactions" refers to any covered transaction under a First Tier Covered Transaction (such as subcontracts). "First Tier Participant" refers to the participant who has entered into a covered transaction with a recipient or subrecipient of Federal funds (such as the prime or general contractor). "Lower Tier Participant" refers any participant who has entered into a covered transaction with a First Tier Participant or other Lower Tier Participants (such as subcontractors and suppliers). e. The prospective lower tier participant agrees by submitting this proposal that, should the proposed covered transaction be entered into, it shall not knowingly enter into any lower tier covered transaction with a person who is debarred, suspended, declared ineligible, or voluntarily excluded from participation in this covered transaction, unless authorized by the department or agency with which this transaction originated. f. The prospective lower tier participant further agrees by submitting this proposal that it will include this clause titled "Certification Regarding Debarment, Suspension, Ineligibility and Upper Hoh River Road Phase 2, WA JEFF 91420(1) Page 28 of 33 July 23, 2020 2. Reporting Total Compensation of Executives. a. Applicability and what to report. You must report total compensation for each of your five most highly compensated executives for the preceding completed fiscal year, if- 1. the total Federal funding authorized to date under this award is $25,000 or more; 2. in the preceding fiscal year, you received— i. 80 percent or more of your annual gross revenues from Federal procurement contracts (and subcontracts) and Federal financial assistance subject to the Transparency Act, as defined at 2 CFR 170.320 (and subawards); and ii. $25,000,000 or more in annual gross revenues from Federal procurement contracts (and subcontracts) and Federal financial assistance subject to the Transparency Act, as defined at 2 CFR 170.320 (and subawards); and iii. The public does not have access to information about the compensation of the executives through periodic reports filed under section 13(a) or 15(d) of the Securities Exchange Act of 1934 (15 U.S.C. § 78m(a), 78o(d)) or section 6104 of the Internal Revenue Code of 1986. (To determine if the public has access to the compensation information, see the U.S. Security and Exchange Commission total compensation filings at http://www.sec.gov/answers/execomp.htm.) b. Where and when to report. You must report executive total compensation described in subsection 2.a.. of this section: 1. As part of your registration profile at https://www.sam.gov 2. By the end of the month following the month in which this award is made, and annually thereafter. 3. Reporting of Total Compensation of Prime Contractor's Executives. a. Applicability and what to report. Unless you are exempt as provided in subsection 4. of this section, for each prime contractor receiving funds for which reimbursement will be sought, you shall report the names and total compensation of each of the prime contractor's five most highly compensated executives for the prime contractor's preceding completed fiscal year, if- 1. in the prime contractor's preceding fiscal year, the contractor received— i 80 percent or more of its annual gross revenues from Federal procurement contracts (and subcontracts) and Federal financial assistance subject to the Transparency Act, as defined at 2 CFR 170.320 (and subawards); and Upper Hoh River Road Phase 2, WA JEFF 91420(1) Page 31 of 33 July 23, 2020 ii. $25,000,000 or more in annual gross revenues from Federal procurement contracts (and subcontracts), and Federal financial assistance subject to the Transparency Act (and subawards); and 2. The public does not have access to information about the compensation of the executives through periodic reports filed under section 13(a) or 15(d) of the Securities Exchange Act of 1934 (15 U.S.C. 78m(a), 78o(d)) or section 6104 of the Internal Revenue Code of 1986. (To determine if the public has access to the compensation information, see the U.S. Security and Exchange Commission total compensation filings at http://www.sec.gov/answers/execomp.htm.) b. Where and when to report. You must report the prime contractor's executive total compensation described in subsection 3.a. of this section: 1. To http://www.fsrs.gov. 2. By the end of the month following the month during which you executed the prime contract. For example, if a prime contract is executed on any date during the month of October of a given year (i.e., between October 1 and 31), you must report any required compensation information of the prime contractor by November 30 of that year. 4. Exemptions. If, in the previous tax year, you or the prime contractor had gross income, from all sources, under $300,000, you are exempt from the requirements to report prime contracts and the total compensation of the five most highly compensated executives of any prime contractor. S. Definitions. For purposes of this section: a. Entity means all of the following, as defined in 2 CFR Part 25: 1. A Governmental organization, which is a State, local government, or Indian tribe; 2. A foreign public entity; 3. A domestic or foreign nonprofit organization; 4. A domestic or foreign for -profit organization; 5. A Federal agency, but only as a contractor or subcontractor to a non -Federal entity. b. Executive means officers, managing partners, or any other employees in management positions. c. Total compensation means the cash and noncash dollar value earned by the executive during the Servicing Agency's or prime contractor's preceding fiscal year and includes the following (for more information see 17 CFR 229.402(c)(2)): Upper Hoh River Road Phase 2, WA JEFF 91420(1) Page 32 of 33 July 23, 2020 .f 1. Salary and bonus. 2. Awards of stock, stock options, and stock appreciation rights. Use the dollar amount recognized for financial statement reporting purposes with respect to the fiscal year in accordance with the Statement of Financial Accounting Standards No. 123 (Revised 2004) (FAS 123R), Shared Based Payments. 3. Earnings for services under non -equity incentive plans. This does not include group life, health, hospitalization or medical reimbursement plans that do not discriminate in favor of executives, and are available generally to all salaried employees. 4. Change in pension value. This is the change in present value of defined benefit and actuarial pension plans. 5. Above -market earnings on deferred compensation which is not tax -qualified. 6. Other compensation, if the aggregate value of all such other compensation (e.g. severance, termination payments, value of life insurance paid on behalf of the employee, perquisites or property) for the executive exceeds $10,000. E. SINGLE AUDIT INFORMATION FOR SERVICING AGENCIES To maximize the transparency and accountability of funds authorized under the Act as required by Congress and in accordance with 2 CFR 200 "Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards", the Servicing Agency agrees to maintain records that identify adequately the source and application of FHWA funds. Upper Hoh River Road Phase 2, WA JEFF 91420(1) Page 33 of 33 July 23, 2020