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HomeMy WebLinkAbout16- Montana Transportation Alternatives Program Project Funding and Maintenance Agreement, W Side Trail XingsW SIDE TRAIL XINGS-BOZEMAN UPN 9155 MONTANA TRANSPORTATION ALTERNATIVES PROGRAM PROJECT FUNDING AND MAINTENANCE AGREEMENT THIS AGREEMENT is made and entered into by and between the State of Montana, acting by and through its Department of Transportation, hereinafter called the "State", and the City of Bozeman, hereinafter called the "City". WHEREAS, the City was successful in obtaining Montana Transportation Alternative (TA) funds to develop and construct ADA compliant street crossings at three locations in Bozeman through TA project UPN 9155, titled W SIDE TRAIL XINGS-BOZEMAN (hereinafter the "Project"); and, WHEREAS, the estimated cost of the project's development as noted in Table 1 of this agreement will be financed by the State using TA funds and matching funds provided by the City; and, NOW, THEREFORE, in consideration of the covenants herein contained, the parties agree that: 1. The State will design, advertise for bid and let and award a project to construct ADA compliant roadway crossing improvements (widened sidewalks, curb ramps, a refuge island, rectangular rapid flashing beacons & crosswalk markings). The project shall be located in Bozeman on Babcock Street at the intersection with Fowler Avenue, on Durston Road between Hunter's Way and Greenway Avenue, and on Oak Street at the intersection with Hunter's Way. 2. The City contact for project related questions shall be: Craig Woolard Bozeman Public Works Director 20 East Olive Street Bozeman, MT 59771 406-582-2315 CWoolard@BOZEMAN.NET 3. The State Contact for project related questions shall be: Dave Holien Montana Department of Transportation 2701 Prospect Avenue PO Box 201001 Helena, MT 59620-1001 406-444-6118 dholien@mt.gov W SIDE TRAIL XINGS-BOZEMAN UPN 9155 4. It is understood and agreed between the parties that: Section 17-1-106. MCA requires any state agency, including MDT that receives non -general funds to identify and recover its indirect costs. These costs are in addition to direct project costs. MDT's indirect cost rate is determined annually as a percentage of the project's direct costs to cover the projects share of MDT's indirect costs as defined by 2 CFR Part 200, Appendix VII. MDT's current indirect cost rate is 10.97% for fiscal year 2017 (July 1, 2016 to June 30, 2017). For this project, MDT billings to the City will include a charge for the indirect costs at the current fiscal year indirect cost rate, which amount will be applied toward the total project contribution of the City. If this project extends across more than one fiscal year, more than one annual rate will be involved, as the rates may change during the life of the project. 5. The City will be billed in advance for its local matching funds and associated indirect costs. Separate billings will be made for the project's preliminary engineering phase and the subsequent construction/construction engineering phase. The billing for the PE phase will be sent within 30 days of this Agreement being signed. The billing for the CN/CE phase will be sent no more than sixty (60) days prior to the project bid opening. The billing amount for CN/CE will be updated with the most current cost estimates at time of billing. 6. If, after initial payment is made for the CN/CE phases, bid opening or contract award by the State is delayed or postponed by 30 days or more, or canceled for any reason, the State agrees to refund the City's initial payment within 30 days upon the City's request. 7. The City will submit payment to the State within thirty (30) days of billing. Payments to this project will be provided to the State in the form of a check to be credited to this project. The payment(s) should be sent to MDT's Administration Division at: Montana Department of Transportation Attention: Collections 2701 Prospect Avenue P.O. Box 201001 Helena, MT 59620-1001 8. The parties understand that it is possible that the estimated cost of the project may be exceeded once the project has begun. For the PE and CE phases, the State agrees to cover cost overruns using TA funds provided the City agrees to pay the 13.42% local matching share and associated indirect costs for the overruns. For the CN phase, the State agrees to award the project using TA funds provided the lowest responsive bid does not exceed the allowable overrun percentage listed in Table 2. The City agrees to pay the requisite 13.42% local matching share and associated indirect costs up to the allowable overrun percentage. The State will contact the City if the lowest responsive bid exceeds the allowable overrun percentage listed in Table 2 to determine a funding solution agreeable to both parties. If both parties agree to recommend awarding the contract, MDT will fund the overrun using TA funds 2 • W SIDE TRAIL XINGS-BOZEMAN UPN 9155 and the City agrees to pay the additional 13.42% local matching funds and the associated indirect costs for the overruns. If both parties don't agree to fund the overrun, the State will recommend the Commission not award the project. The State will work with the City to identify scope changes to bring the project into a fundable level and re -advertised for letting. If scope changes cannot be agreed to by both parties, then the project may either be re -advertised and both parties agree to fully fund it in accordance with this agreement or the project may be withdrawn and the City agrees to reimburse the State for all TA funds expended to date. The State's Project Manager will inform the City's point of contact beforehand, and as early as possible, of anything that appears will result in a cost increase, and will discuss the need for any possible additional costs, alternative designs, or a reduction in the project's scope with the City and will consider the City's comments and concerns for that additional cost or alteration in scope or design. None of this will prevent, delay, or excuse the City from paying for any additional costs deemed necessary by State. 9. If payment is not made within that thirty (30) day period, interest on the unpaid amount will accrue at the rate of 10% per year, and continue to accrue until paid in full. If the City is billed for additional funds, MDT will not participate in any future funding agreement with the City until full payment, including interest, is received from the City. 10. Upon completion of the project by the State and its contractor, the City agrees that it will service, maintain, and pay the cost of operating the project described in this agreement. If the City fails to service, maintain, and pay the cost of operating this project as described in this agreement, the State, in its sole discretion, may service, maintain and operate the project and bill the City for such service, maintenance and operation. 11. The City agrees that it will defend, protect and indemnify the, State for any claim or loss arising out of, due to or allegedly due to the failure of the City to service, maintain or operate the project. The State agrees that it will protect, defend and indemnify the City for any claim or loss arising out of, due to or allegedly due to the design or construction of the project under the State's control. 12. Access and Retention of Records —The City agrees to provide the State, Legislative Auditor or their authorized agents access to any records necessary to determine compliance with the Agreement. The City agrees to create and retain records supporting this Agreement for a period of three years after the completion date of the Agreement or the conclusion of any claim, litigation or exception relating to the Agreement taken by the State of Montana or a third party. W SIDE TRAIL XINGS-BOZEMAN UPN 9155 13. Choice of Law and Venue — In the event of litigation concerning this Agreement, venue will only be in District Court of the First Judicial District of the State of Montana in and for the County of Lewis and Clark. This Agreement will be interpreted according to Montana law. 14. Agreement Modification — Any change to this Agreement will only be by written agreement between parties. 15. Severability and Integration — If any single part or parts of this Agreement are determined to be void, the remaining parts will remain valid and operative. This Agreement, as written, expresses the total, final and only agreement of the parties relevant to its subject matter. No provision, expressed or implied, arising from any prior oral or written request, bid, inquiry, negotiation, contract, or any other form of communications shall be a provision of this Agreement unless specifically provided within the written terms herein. 16. Termination —The parties may mutually terminate this Agreement in writing at anytime. MDT, at its sole discretion, may terminate or reduce the scope of this Agreement if available funding is reduced for any reason. Should the City decide to terminate the project, the City will be responsible for the reimbursement of the TA funds expended to date. MDT may terminate this Agreement in whole or in part at any time if the City fails to perform the Agreement as set forth. If MDT terminates this Agreement due to the City's failure to perform, the City will be responsible for the reimbursement of the TA funds expended to date. 17. Compliance with Laws - The City shall, at all times during the performance of its obligations of this Contract strictly adhere to all applicable local, state and federal laws and regulations, including but not limited to: Title VI of the Civil Rights Act of 1964, Section 504 of the Rehabilitation Act of 1972, the Education Amendments of 1972, the Age Discrimination Act of 1975,,the Americans With Disabilities Act, including Title II, Subtitle A, 24 U.S.C. Sec. 12101, et seq., all rules and regulations applicable to these laws prohibiting discrimination based upon actual or perceived race, color, national origin, ancestry, religion, creed, sex, age, marital or familial status, physical or mental disability, sexual orientation, gender identity or expression and handicap and with Exhibit A, attached hereto and incorporated by reference. 0 W SIDE TRAIL XINGS-BOZEMAN UPN 9155 TABLE 1 TRANSPORTATION ALTERNATIVESS PROJECT COST ESTIMATE UPN 9155 W SIDE TRAIL XINGS-BOZEMAN May 2016 Project Phases Total Project Cost TA Funds 86.58% City Funds 13.42% Other Funds Preliminary Engineering (PE) $ 19,683 $ 17,042 $ 2,641 $ -0- Utility Relocations (IC) $ -0- $ -0- $ -0- $ -0- Right-of-Way (ROW) $ -0- $ -0- $ -0- $ -0- Construction (CN) $ 131,219 $ 113,609 $ 17,610 $ -0- Construction Engineering (CE) $ 15,747 $ 13,634 $ 2,113 $ -0- Other (OT) $ -0- $ -0- $ -0- $ -0- Subtotal $ 166,649 $ 144,285 $ 22,364 $ -0- IDC $18,281 $15,828 $2,453 $ -0- Grand Total $184,930 $160,113 $24,817 $ -0- The above costs are estimates. Additional project costs will be covered in the same manner as above. The IDC rate for FY 2017 (July 1, 2016 - June 30, 2017) is 10.97%. TABLE 2 MDT GUIDELINES FOR AWARDING CONSTRUCTION CONTRACTS (Used to determine allowable overrun cost participation based on construction bid award amount) LOWEST RESPONSIVE BID ALLOWABLE OVERRUN % UNDER $50,000 30% $50,000 - $200,000 25% $200,000 - $500,000 20% $500,000 - $2,000,000 15% OVER $2,000,000 10% M SIDE TRAIL XINGS-BOZEMAN UPN 9155 IN WITNESS WHEREOF, the Department's authorized representative has signed on behalf of the State of Montana, and the Mayor of the City of Bozeman has signed and affixed hereto the seal of the City. STATE OF MONTANA, DEPARTMENT OF TRANSPORTATION BY MT Dept. of Transportation APPROVED FOR LEGAL CONTENT MDT Legal Counsel CITY OF BOZEMAN MAYOR By 4/L"flt- 12016 I, a&�,n LMA2k , Bozeman City Clerk, hereby certify that this agreement was regularly adopted y the City Council at a meeting held on the j(Att% day of MOM , 20 Ib , and that the Council authorized the Mayor to sign this agreement on behalf of the City. ,W SIDE TRAIL XINGS-BOZEMAN UPN 9155 EXHIBIT A NON-DISCRIMINATION -NOTICE During the performance of this Agreement, the City (hereafter in this Section "the Party"), for itself, its assignees and successors in interest, agrees as follows: A) COMPLIANCE WITH TITLE VI OF THE CIVIL RIGHTS ACT OF 1964 FOR FEDERAL -AID CONTRACTS (1) Compliance with Regulations: The Party shall comply with all Regulations relative to nondiscrimination in Federally -assisted programs of the Department of Transportation, 49 Code of Federal Regulations (CFR), Part 21, as they may be amended (hereafter referred to as the Regulations), which are incorporated by reference and made a part of this Agreement, even if only state funding is here involved. (2) Nondiscrimination: The Party, with regard to the work performed by it during the Agreement, shall not discriminate on the grounds of sex, race, color, or national origin in the selection and retention of subcontractors, including procurement of materials and leases of equipment. The Party shall not participate either directly or indirectly in the discrimination prohibited by 49 CFR Sec. 21.5. (3) Solicitations for Subcontracts, Including Procurement of Materials and Equipment: In all solicitations, whether by competitive bidding or negotiation by the Party for work to be performed under a subcontract, including procurement of materials or leases of equipment, any potential subcontractor or supplier shall be notified by the Party of the Party's obligations under this Agreement and the Regulations relative to nondiscrimination. (4) Information and Reports: The Party will provide all reports and information required by the Regulations, or directives issued pursuant thereto, and permit access to its books, records, accounts, other sources of information and its facilities as may be determined by State or the Federal Highway Administration (FHWA) to be pertinent to ascertain compliance with Regulations or directives. Where any information required of the Party is in the exclusive possession of another who fails or refuses to furnish this information, the Party shall so certify to the Department or the FHWA as requested, setting forth what efforts it has made to obtain the information. (5) Sanctions for Noncompliance: In the event of the Party's noncompliance with the nondiscrimination provisions of this Agreement, State may impose sanctions as it or the FHWA determines appropriate, including, but not limited to, (a) Withholding payments to the Party under the Agreement until the Party complies, and/or (b) Cancellation, termination or suspension of the Agreement, in whole or in part. (6) Incorporation of Provisions: The Party will include the provisions of paragraphs (1) through (6) in every subcontract, including procurement of materials and leases of equipment, unless exempt by the Regulations or directives issued pursuant thereto. The W SIDE TRAIL XINGS-BOZEMAN UPN 9155 Party will take such action with respect to any subcontract or procurement as the State or' the FHWA may direct to enforce such provisions including sanctions for noncompliance: Provided, however, that in the event the Party is sued or is threatened with litigation by a subcontractor or supplier as a result of such direction, the Party may request the State to enter into the litigation to protect the interests of the State, and, in addition, the Party or the State may request the United States to enter into such litigation to protect the interests of the United States. B) COMPLIANCE WITH THE MONTANA GOVERNMENTAL CODE OF FAIR PRACTICES, SEC. 49-3-207, MCA In accordance with Section 49-3-207, MCA, the Party agrees that for this Agreement all hiring will be made on the basis of merit and qualifications and that there will be no discrimination on the basis of race, color, religion, creed, political ideas, sex, age, marital status, physical or mental disability, or national origin by the persons performing the Agreement. C) COMPLIANCE WITH AMERICANS WITH DISABILITIES ACT (ADA) (1) The Party will comply with all regulations relative to implementation of the AMERICANS WITH DISABILITIES ACT. (2) The Party will incorporate or communicate the intent of the following statement in all publications, announcements, video recordings, course offerings or other program outputs: "The Party will provide reasonable accommodations for any known disability that may interfere with a person in participating in any service, program or activity offered by the Party. In the case of documents, recordings or verbal presentations, alternative accessible formats will be provided. For further information call the Party." All video recordings produced and created under contract and/or agreement will be closed -captioned. D) COMPLIANCE WITH PARTICIPATION BY DISADVANTAGED BUSINESS ENTERPRISES IN DEPARTMENT OF TRANSPORTATION FINANCIAL ASSISTANCE PROGRAMS, 49 CFR PART 26 Each Agreement the Department signs with a Party (and each subcontract the prime contractor signs with a subcontractor) must include the following assurance: The Party, subrecipient or subcontractor shall not discriminate on the basis of race, color, national origin, or sex in the performance of this contract. The Party shall carry out applicable requirements of 49 CFR Part 26 in the award and administration of DOT - assisted contracts. Failure by the Party to carry out these requirements is a material breach of this contract, which may result in the termination of this contract or such other remedy as the recipient deems appropriate