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HomeMy WebLinkAbout17- Memorandum of Agreement - Montana Department of Transportation (MDT) - N. 7th Avenue Corridor (N-118) Streetscape Projects and Maintenance CITY/STATE MEMORANDUM OF AGREEMENT N 7TH AVENUE CORRIDOR (N-118) STREETSCAPE PROJECTS AND MAINTENANCE BOZEMAN. MONTANA This Memorandum of Agreement (Agreement) is made and entered into by and between the city of Bozeman ("the City"), a self-governing municipality operating pursuant to its Charter and the laws of the State of Montana, PO Box 1230, Bozeman, MT 59771 and the Montana Department of Transportation ("MDT"), a department of the State of Montana, PO Box 201001, Helena MT 59620-1001 together referred to as "the Parties." The Purpose of this Agreement is to set forth the respective responsibilities and duties of the City and MDT associated with the N 7thAvenue Corridor (N-118) from Main Street (N50) on the south through the westbound I-90 interchange on the north within the City of Bozeman ("N 7th Avenue Corridor"). This Agreement also sets forth terms necessary to provide the City encroachment permits to construct and maintain the N 7th Avenue Streetscape projects including the area previously covered by the 2013 project known as North 7th Avenue Lighting (U-1207). Any encroachment permit granted to the City by this Agreement is explicitly subject and subordinate to the rights and title of MDT and the State of Montana. WHEREAS, MDT is responsible for planning, designing, constructing and maintaining State Highways and roadway associated transportation facilities, including associated pull-offs, parking areas, and rest areas for the use and benefit of the traveling public, in a safe and efficient manner in accordance with Title 23 United States Code (U.S.C) and Title 60 Montana Code Annotated (MCA) and maintains and has jurisdiction for N 7th Avenue (N- 118); and WHEREAS, The City,with MDT's consent and participation,is proposing the N 7th Streetscape project and may, in the future, propose additional streetscape projects ("hereinafter referred to as "the Projects"), along the N 7th Avenue Corridor (N-118).The Projects generally include installation of luminaires, painting of existing signals/signage, sidewalk, curb and gutter and asphalt modification, paver installation,installation of street furnishings, Public Rights-of-way Accessibility Guidelines (PROWAG) upgrades, crosswalk upgrades including pedestrian activated beacons, signing, striping, storm water improvements, installation of landscaping including trees and soil cells, electrical outlet installation, irrigation,and other amenities within MDT right-of-way; and relocation of some sidewalks outside of MDT right-of-way onto City easements. Some components included in the Projects list above and which are covered by this Agreement have already been constructed either with MDT construction projects or standalone streetscape previously completed by the City; and WHEREAS,The City and MDT recognize that roadway lighting and pedestrian access are required design elements on N 7th Avenue; and Page 1 WHEREAS,This Agreement must be fully executed before the City may initiate construction of the Projects within the MDT controlled public right-of-way of the corridor; and NOW,THEREFORE,The Parties set forth the fundamental duties and responsibilities necessary for the encroachment of the Projects within MDT right-of-way in the N 7t Corridor. ARTICLE L OBLIGATIONS OF THE CITY-DESIGN &CONSTRUCTION 1. The City must coordinate any design and construction plans for the Projects that rely upon Public right-of-way for the travel way of all travel modes with MDT and other MDT projects. 2. The City must submit for MDT review and approval all construction plans for the Projects that rely upon Public right-of-way used for the travel way of travel modes. 3. The City is solely responsible for the design and construction of the Projects as approved by MDT. 4. The City shall be responsible for obtaining any needed right-of-way for the Projects. 5. The City agrees to meet lighting, PROWAG,traffic control,geometrics, and construction standards established by MDT. 6. The City agrees that no fixture, building, structure, or other permanent installation other than those approved by MDT shall be constructed or placed within MDT right-of- way without prior written approval from MDT. 7. The City agrees any change, expansion, increase, or revision in the MDT approved design or construction of the Projects must receive written approval from MDT prior to construction or installation. 8. The City must submit and receive approval from MDT Butte Traffic Engineer for a traffic control plan prior to working within MDT right-of-way. 9. Before initiating any work within MDT right-of-way,the City must schedule a preconstruction meeting with the MDT Bozeman Area Maintenance and other appropriate MDT staff to discuss construction related activities and coordination. The MDT Bozeman Area Maintenance staff must be notified and an approval received a minimum of 14 calendar days prior to commencing any construction or maintenance work within MDT right-of-way. Page 2 10.The City must complete the necessary environmental processes for modification to the state highways and roadways and demonstrate that all, if any, environmental issues associated with the Projects have been identified and mitigated. The City agrees it will prepare and file any required environmental documents and apply for and obtain any permits required by other governmental agencies at no expense to MDT prior to construction taking place within MDT right-of-way. 11.The City agrees to be responsible for any and all damages to MDT's facilities caused by the City, the City's staff or contractors, or resulting from the City's construction activities for the Projects. The City must repair, or caused to be repaired, any and all damages, at its sole expense, after notification of damage by MDT and approval of repair work needed, method of repair, and schedule of repair. 12.The Projects may include modification of storm water flows. City agrees it will obtain approvals from downstream landowners if a Project impacts the storm water flow of such downstream properties and provide documentation of appropriate coordination with affected landowners. 13.The City agrees it will fund any additional costs MDT may incur for MDT projects which impact the amenities the City places in the MDT right-of-way. This can include removal and/or replacement of landscaping, decorative lighting,and other amenities. 14.The City agrees it will fund any additional costs related to City-installed amenities included within MDT projects. The City will fund these costs in advance of the affected MDT construction project(s). ARTICLE II. OBLIGATIONS OF MDT- DESIGN &CONSTRUCTION 1. MDT agrees to review all plans, design, and data submitted by the City to ensure all MDT safety and design standards are met,and if found acceptable, approve such plans and designs through MDT's System Impacts Analysis Process (SLAP). 2. Once the plans and designs are found acceptable, MDT must issue the appropriate encroachment permits following MDT's standard processes. 3. MDT agrees it will request necessary approval or concurrence from the Transportation Commission throughout the course of the activities contemplated by this agreement. 4. MDT agrees it will require necessary concurrence from the Federal Highway Administration (FHWA) for encroachment(s) into I-90 right-of-way. S. MDT agrees the City will provide construction oversight through its engineering agents for the Projects. MDT agrees it will assign MDT Butte District Staff to ensure MDT's responsibilities regarding construction oversight are met during the City's construction of the Projects. MDT may seek reimbursement for MDT staff time from the City of Page 13 Bozeman for construction oversight or future City construction projects if construction oversight provided by City does not meet the construction oversight requirements applicable to MDT construction projects. 6. MDT agrees it will review and, if such plans meet all applicable MDT standards or guidelines, approve the City's Traffic Control Plans. 7. MDT agrees it will conduct final inspection of the Projects within MDT and public right- of-way upon completion and request any improvements or corrections necessary to comply with MDT standards. 8. MDT agrees to coordinate any design and construction plans for MDT projects with any future City projects to ensure consistent design elements, styles, palettes and colors are used. ARTICLE IIL OBLIGATIONS OF THE CITY- MAINTENANCE The purpose of this Article is to provide the obligations of the City in maintaining the Projects during the term of this Agreement. 1. The City, at the City's sole expense, agrees to maintain all items within the N 7th Avenue Corridor listed in Attachment B in a satisfactory condition. 2. The City agrees any maintenance that impacts the traveled way including traffic control activities associated with off-roadway work within MDT right-of-way must be reviewed and approved by MDT Bozeman Area Maintenance staff prior to initiation of the maintenance. 3. The City may include MDT in a Special Improvement Lighting District (SILD), in accordance with Mont. Code Ann. § 7-12-4301 et seq., for any property owned in fee by MDT within the SILD, except that property within the roadway right-of-way shall be excluded from the SILD. 4. The City shall keep a stock of replacement parts for the street lights (decorative poles/bases/heads etc.) within the corridor for use by the City and MDT (if the City is unable to maintain in a timely fashion). S. The City agrees that any major repair costs for the City maintenance items listed in Attachment B that are unrecoverable from third parties shall be the responsibility of the City. The City, at its sole discretion, may determine to not replace certain damaged Projects Improvements if the City determines funds due from third parties are not recoverable and the item is not required for roadway safety or PROWAG/ADA- complaint pedestrian access. Page 4 6. The City agrees that no fixture, building, structure, or other permanent installation other than those approved by MDT shall be constructed or placed within MDT right-of- way without prior written approval from MDT. 7. The City agrees to forward any request for encroachments within the N 7th Avenue Corridor,whether proposing to impact either MDT or City right-of-way/easement, for MDT's review for compliance with state and federal laws and rules. 8. The City shall complete the necessary environmental processes for their proposed modification(s) to the state highways and roadways and demonstrate that all, environmental issues associated with the Projects have been identified and mitigated, in conformance with applicable laws and regulations. The City agrees it will prepare and file any required environmental documents and apply for, obtain, and comply with the requirements of any permits required by other governmental agencies at no expense to MDT prior to maintenance taking place within the public roadway right-of- way. 9. The City agrees to be responsible for any and all damages to MDT's transportation facilities caused by the City,the City's staff or contractors, or resulting from the Projects. The City must repair any and all damages, at its sole expense, after notification of damage by MDT and approval of repair work needed, method of repair, and schedule of repair. 10. If the City determines it is no longer able to complete the maintenance on the landscaping, sidewalks or other amenities,the improvements become the property of MDT,without reimbursement. MDT will maintain the property as it sees fit, and may remove landscaping and other amenities without City or landowner approval. MDT may seek compensation for removal of landscaping or other amenities from the City. ARTICLE IV. OBLIGATIONS OF MDT-MAINTENANCE The purpose of this Article is to provide the obligations of MDT in maintaining certain transportation infrastructure located within MDT's right of way. 1. MDT, at MDT's sole expense, agrees it will maintain all items within the N 71h Avenue Corridor listed in Attachment C in a satisfactory condition. 2. MDT agrees to review any encroachments within the N 7th Avenue Corridor on MDT right-of-way for compliance with state and federal laws and rules. If encroachment is allowed within MDT right-of-way, MDT will issue appropriate permits. 3. If the City is not able to complete the maintenance requirements in Article III, MDT may complete the required maintenance due to public emergency or safety concern, and may seek compensation from the City. Page 15 ARTICLE V. GENERAL TERMS AND CONDITIONS 1. TERM -The term of this Agreement shall be ten (10)years. The City and MDT may agree to extend this Agreement by mutual written agreement. After the initial ten (10) year term,this Agreement will renew automatically, for successive one (1) year terms, unless either Party gives ninety (90) days' advance written notice, pursuant to section 14, of non-renewal to the other Party.This Agreement supersedes the January, 2013 Memorandum of Agreement regarding North 7th Avenue Lighting (U-1207) Main Street to Griffin Drive and any other existing agreement for the corridor. 2. Termination-This Agreement may be terminated by MDT if the City violates or breaches any term, condition, or article of this Agreement and the City has failed to correct (or reasonably initiate corrections) the same within 60 days, of receiving notice in writing addressed to the City's representative pursuant to section 14 of this article, of such violation or breach of any term, condition, or Article of this Agreement. If this Agreement is terminated,the improvements become the property of MDT,without reimbursement. MDT will maintain the property as it sees fit, and may remove landscaping and other amenities without City or landowner approval. MDT may seek compensation for removal of landscaping or other amenities from the City. 3. Hold Harmless &Indemnification- The City shall protect, defend, indemnify, and hold MDT, its elected and appointed officials, agents, and employees,while acting within their duties as such,harmless from and against all claims,liabilities, demands, causes of action, and judgements (include the cost of defense and reasonable attorney fees) arising in favor of or asserted by the City's employees or third parties on account of damage to property, bodily or personal injury, or death arising out of any services performed, act or omission that in any way results from the acts or omissions of the City, or their agents, or subcontractors, under this Agreement, except the negligence of MDT under this Agreement. MDT shall protect, defend,indemnify, and hold the City, its elected and appointed officials, agents, and employees,while acting within their duties as such,harmless from and against all claims,liabilities, demands, causes of action, and judgements (include the cost of defense and reasonable attorney fees) arising in favor of or asserted by the MDT's employees or third parties on account of damage to property,bodily or personal injury, or death arising out of any services performed, act or omission that in any way results from the acts or omissions of the MDT, or their agents, or subcontractors,under this Agreement, except the negligence of the City under this Agreement. 4. Insurance-The City is a member of the Montana Municipal Interlocal Authority's (MMIA) Liability Program.The City will maintain for the duration of the Agreement at its own cost and expense liability coverage against claims for injuries to persons or damages to property which may arise from or in connection with any act or omission by the City and its agents, employees, representative, assigns or subcontractors during Page 16 construction of the Project improvements. Except as may be excluded from coverage under the applicable MMIA Memorandum of Liability Coverage,this coverage shall cover such claims as may be caused by any intentional or negligent act or omission. Coverage amounts shall be no less than$750,000 per claim and $1,500,000 per occurrence. The City must provide MDT proof of its MMIA coverage before beginning any activities under this Agreement. The City must notify the State immediately of any change in liability coverage during the term of this Agreement. a). Additional insured status: The State, MDT, its officers, officials, employees, and volunteers are to be covered and listed as additional insureds arising out of the activities performed by or on behalf of the City, including the insured's general supervision of any Contractor; products, and completed operations; premises owned, leased, occupied or used. b).Additional covered party endorsement: The City must obtain from the MDT an additional covered party endorsement listing the State, MDT, its officers, officials, employees are to be covered and listed as additional covered parties for claims arising out of the activities performed by or on behalf of the City. c).Workers' Compensation Insurance: The City provides its employees workers compensation coverage through the MMIA. The City must maintain workers' compensation insurance and require its contractor and its contractor's subcontractors to carry their own workers compensation coverage while performing work within MDT right-of-way in accordance with§39-71-401/405, Montana Code annotated. Neither the contractor nor its employees are employees of MDT. This insurance/exemption must be valid for the entire Agreement period. S. Public Safety- It is agreed, if any repairs to the elements of the Projects must be performed to address or prevent a public hazard,the City will immediately protect the area from public access, contact MDT Bozeman Area Maintenance, and make reasonable and timely effort to correct or repair the hazard. 6. Invoicing and Indirect Cost (IDC)- (a) If MDT incurs any costs as a result of a public emergency, as a result of the City not meeting the requirements in Article I or Article III which necessitates action on MDT's part concerning the maintenance or repair of the Projects, MDT shall be entitled to be compensated for such costs by the City and the City shall pay the same within thirty (30) days of its receipt of such invoices. Section 17-1-106, MCA,requires any state agency, including MDT,which receives non-general funds to identify and recover its indirect costs (IDC). These costs are in addition to direct project costs. MDT's IDC rate is determined annually as a percentage of the project's direct costs to cover the project's share of MDT's IDC as Page 7 defined by 2 CFR Part 200,Appendix VII. MDT's current IDC rate is 10.96% for fiscal year 2017 (July 1, 2017 to June 30, 2018). If the work occurs or extends into fiscal year 2018 or beyond the IDC rate will be charged at the rate agreed to by MDT and the Federal Highway Administration (FHWA). i. Invoice will be sent to: City of Bozeman Attn: Director of Public Works PO Box 1230 Bozeman, MT 59771 ii. Payments shall be made to: Montana Department of Transportation Attention: Collections 2701 Prospect Avenue PO Box 201001 Helena, MT 59620-1001 7. Choice of Law and Venue-This Agreement shall be governed by the laws of Montana. The parties agree that any litigation concerning this Agreement must be brought in the First Judicial District Court, in and for the County of Lewis and Clark, State of Montana, and each party shall pay its own costs and attorney fees. In case of conflict between the terms and conditions of this Agreement and the laws of the State of Montana,the laws of the State of Montana shall control. 8. Binding Effect--The benefits and obligations set forth in this Agreement shall be binding upon,and inure to the benefit of,their respective successors, administrators and assigns of the Parties. 9. Relationship of Parties -- Nothing contained in this Agreement shall be deemed or construed (either by the parties hereto or by any third party) to create the relationship of principal and agent or create any partnership joint venture or other association between the Parties. 10.Non-Discrimination-The City will require that during the performance of any work arising out of this Agreement the City, for itself,assignees, and successors shall comply with all applicable non-discrimination regulation set forth in Attachment"A" attached hereto and made part of this Agreement. Additionally, MDT requires that any construction resulting from this Agreement must include appropriate pedestrian facilities that meet or exceed current MDT standards for accessibility as set forth in the U.S.Architectural &Transportation Barrier Board, Americans with Disabilities Act Accessibility Guidelines (ADAAG) and MDT's detailed drawings, 608 series. Page ( 8 11.Audit- The City grants to the Legislative Auditor and the Legislative Fiscal Analysts the right,without prior notice and during normal business hours, to audit, at their own costs and expense, all records, reports, and other documents,the City maintains in connection with this Agreement. 12. Utilities --This Agreement is subject to the right of any private or public utility entity now lawfully occupying the right-of-way to continue to operate and maintain utility facilities thereupon. Copies of existing utility permits may be obtained from the MDT Butte Utility Agent. 13.Amendment and Modification --This Agreement may be modified or amended only by written Addendum signed by the parties. In addition to the terms and conditions contained herein,the provisions of any Addendum may be incorporated and made a part hereof by this reference in the terms of the amendment so provided. In the event of any conflict between the terms and conditions hereof and the provisions of any Addendum,the provision of the Addendum shall control, unless the provisions thereof are prohibited by law. 14. Representatives - a. City's Representative: The City's Representative for the purpose of this Agreement shall be the Bozeman City Manager or designee or such other individual as City shall designate in writing. Whenever approval or authorization from or communication or submission to City is required by this Agreement, such communication or submission shall be directed to the City's Representative and approvals or authorizations shall be issued only by such Representative; provided,however,that in exigent circumstances when City's Representative is not available, MDT may direct its communication or submission to other designated City personnel or agents. b. MDT's Representative: The MDT Representative for the purpose of this Agreement shall be Butte District Administrator or the Bozeman Area Maintenance Chief or such other individual as MDT shall designate in writing. Whenever direction to or communication with MDT is required by this Agreement, such direction or communication shall be directed to MDT's Representative; provided,however,that in exigent circumstances when MDT's Representative is not available, City may direct its direction or communication or submission to other designated MDT personnel or agents. 15. Counterpart Execution -This Agreement may be executed in two or more counterparts, each of which shall be deemed an original but all of which together shall constitute one and the same Agreement. The counterparts of this Agreement may be executed and delivered by facsimile or other electronic signature by any of the parties to any other party and the receiving party may rely on the receipt of such document so executed and delivered by facsimile or other electronic means as if the original had been received. Page 19 16. Dispute Resolution: The Parties must first attempt to resolve any claim, controversy, or dispute between the Parties, their agents, employees, or representatives by negotiation between senior-level personnel from each party duly authorized to execute settlement agreements. Should such efforts fail to resolve the dispute,then such dispute may only be resolved in a court of competent jurisdiction in compliance with the Applicable Law provisions of this Agreement. Page ( 10 IN WITNESS WHEREOF, the Department's authorized representative has hereunto signed on behalf of the State of Montana, and the City Manager of the City of Bozeman, on behalf of the City, has signed and affixed hereto the seal of the City. STATE OF MONTANA, DEPARTMENT OF TRANSPORTATION By V. i2 2017 Mo na epartment of Transportation 4),V)- nn 0 j2y" Approved for Legal Content Approved for Civil PQhts CITY 0 OZEMAN c Dennis M.Taylor Interim City Manager Attest: , �� B 02 . p . ■ 1 • . Robin Crough City Clerk � 7 l� Approved As To Form: GVeSullivan Cttorney Page 11 Attachment A Attachment B City of Bozeman Maintenance Responsibilities 1. Sidewalks a. Snow removal b. Repair and ADA compliance-any damage must be repaired within 30 calendar days of MDT written notification or at a time determined by mutual agreement. 2. Landscaping—landscaping repair within MDT right-of-way will occur within 30 calendar days of MDT written notification or at a time determined by mutual agreement. a. Trees—includes trimming, removal and replacement b. Median and boulevard landscaping including irrigation c. Pavers d. Decorative lighting—including electrical costs 3. Roadway Lighting using City standard decorative poles, bases, arms and heads—From Mainstreet to 1-90 Eastbound On/Off ramps—roadway lighting must be repaired within 10 calendar days of MDT written notification of at a time determined by mutual agreement a. Replacement b. Repair c. Standard bulb replacement d. electrical costs 4. Cross-walks parallel to N 7th across City maintained streets a. Striping b. Signage 5. Storm drains 6. Other Amenities a. Street furniture b. Bike racks Attachment C MDT Maintenance Responsibilities 1. Roadway a. Snow plowing b. Pavement maintenance c. Signing d. Pavement markings including crosswalks at signalized intersections on the N 7th Avenue the cross streets are the responsibility of the City. e. Medians—excluding landscaping f. Curb and gutter g. Street sweeping 2. Signalized Intersections this includes electricity a. Traffic signals at the following intersections including electrical costs i. Mendenhall Street ii. Durston Road/Peach Street iii. Tamarack Street iv. Oak Street v. 1-90 Eastbound on-ramp vi. 1-90 Westbound on-ramp b. Pedestrian actuated signals including electrical costs i. Villard intersection c. Intersection lighting at signalized intersections listed above including electrical costs d. ADA ramps 3. Roadway lights 1-90 interchange—from eastbound to westbound on/off ramps decorative or MDT standard lights whichever is in place including electrical costs 4. Roadway lights—MDT standard (cobra heads) including electrical costs Rev.01/2017 MDT NONDISCRIMINATION AND DISABILITY ACCOMMODATION NOTICE Montana Department of Transportation ("MDT") is committed to conducting all of its business in an environment free from discrimination, harassment, and retaliation. In accordance with State and Federal law MDT prohibits any and all discrimination and protections are all inclusive (hereafter "protected classes") by its employees or anyone with whom MDT does business: Federal protected classes State protected classes Race, color, national origin, Race, color, national origin, parental/marital status, sex, sexual orientation, gender identity, pregnancy, childbirth,or medical conditions age, disability, & Limited English Proficiency related to pregnancy or childbirth, religion/ creed, social origin or condition,genetic information, sex, sexual orientation,gender identification or expression, national origin, ancestry, age, disability mental or physical, political or religious affiliations or ideas, military service or veteran status For the duration of this contract/agreement, the PARTY agrees as follows: (1) Compliance with Regulations: The PARTY(hereinafter includes consultant)will comply with all Acts and Regulations of the United States and the State of Montana relative to Non- Discrimination in Federally and State-assisted programs of the U.S. Department of Transportation and the State of Montana, 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: a. The PARTY, with regard to the work performed by it during the contract, will not discriminate, directly or indirectly, on the grounds of any of the protected classes in the selection and retention of subcontractors, including procurements of materials and leases of equipment, employment, and all other activities being performed under this contract/agreement. b. PARTY will provide notice to its employees and the members of the public that it serves that will include the following: i. Statement that PARTY does not discriminate on the grounds of any protected classes. ii. Statement that PARTY will provide employees and members of the public that it serves with reasonable accommodations for any known disability, upon request, pursuant to the Americans with Disabilities Act as Amended (ADA). iii. Contact information for PARTY's representative tasked with handling non- discrimination complaints and providing reasonable accommodations under the ADA. Page 1 of 4 Rev.01/2017 iv. Information on how to request information in alternative accessible formats. c. In accordance with Mont. Code Ann. § 49-3-207, PARTY will include a provision, in all of its hiring/subcontracting notices, that all hiring/subcontracting will be on the basis of merit and qualifications and that PARTY does not discriminate on the grounds of any protected class. (3) Participation by Disadvantaged Business Enterprises (DBEs): a. If the PARTY receives federal financial assistance as part of this contract/agreement, the PARTY will make all reasonable efforts to utilize DBE firms certified by MDT for its subcontracting services. The list of all currently certified DBE firms is located on the MDT website at mdt.mt.gov/business/contracting/civil/dbe.shtml b. By signing this agreement the PARTY assures that: The contractor, sub recipient or subcontractor shall not discriminate on the basis of race, color, national origin, or sex in the performance of this contract. The contractor shall carry out applicable requirements of 49 CFR part 26 in the award and administration of DOT-assisted contracts. Failure by the contractor 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. c. PARTY must include the above assurance in each contract/agreement the PARTY enters. (4) Solicitation for Subcontracts, Including Procurement of Materials and Equipment: In all solicitations, either by competitive bidding, or negotiation, made by the PARTY 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 PARTY of the PARTY's obligation under this contract/agreement and all Acts and Regulations of the United States and the State of Montana related to Non-Discrimination. (5) Information and Reports: The PARTY will provide all information and reports required by the Acts, 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 MDT or relevant US DOT Administration 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 PARTY will so certify to MDT or relevant US DOT Administration, as appropriate, and will set forth what efforts it has made to obtain the information. (6) Sanctions for Noncompliance: In the event of a PARTY's noncompliance with the Non- discrimination provisions of this contract/agreement, MDT will impose such sanctions as it or the relevant US DOT Administration may determine to be appropriate, including, but not limited to: a. Withholding payments to the PARTY under the contract/agreement until the PARTY complies; and/or b. Cancelling, terminating, or suspending the contract/agreement, in whole or in part. Page 2 of 4 Rev.01/2017 (7) Pertinent Non-Discrimination Authorities: During the performance of this contract/agreement, the PARTY, for itself, its assignees, and successor in interest, agrees to comply with the following non-discrimination statues and authorities; including but not limited to: Federal - 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 et seq.), (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 Airways Improvement Act of 1982, (49 U.S.C. §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 prohibits 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 prevents 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; Page 3 of 4 Rev.01/2017 - 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); - 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.). - Executive Order 13672 prohibits discrimination in the civilian federal workforce on the basis of gender identity and in hiring by federal contractors on the basis of both sexual orientation and gender identity. State - Mont. Code Ann. §49-3-205 Governmental services; - Mont. Code Ann. §49-3-206 Distribution of governmental funds; - Mont. Code Ann. § 49-3-207 Nondiscrimination provision in all public contracts. (8) Incorporation of Provisions: The PARTY will include the provisions of paragraph one through seven in every subcontract, including procurements of materials and leases of equipment, unless exempt by the Acts, the Regulations and/or directives issued pursuant thereto. The PARTY will take action with respect to any subcontract or procurement as MDT or the relevant US DOT Administration may direct as a means of enforcing such provisions including sanctions for noncompliance. Provided, that if the PARTY becomes involved in, or is threatened with litigation by a subcontractor, or supplier because of such direction, the PARTY may request MDT to enter into any litigation to protect the interests of MDT. In addition, the PARTY may request the United States to enter into the litigation to protect the interests of the United States. Page 4of4 MD7* Montana Department of Transportation Michael T.Tooley,Director 2701 Prospect Avenue Steve Bullock, Governor PO Box 201001 Helena MT 59620-1001 October 13, 2017 David Fine Economic Development City of Bozeman PO Box 1230 Bozeman, MT 59771 Subject: N 7tn Avenue Corridor Streetscape (N-118) Executed Agreement Distribution Dear David Enclosed is the fully executed City/State Memorandum of Agreement for the N 7tn Avenue Corridor (N-118) Streetscape Projects and Maintenance for your records. The encroachment permit for the streetscape work between Peach St and Short St is out for environmental review. I have requested an expedited review to allow you to keep your project on schedule. As soon as the review is completed I will complete my processing of the permit and forward it to the Bozeman Area Office for the final completion of the processing and issuance of the permit at their discretion. Please contact me if you have any questions, or concerns. You can reach me at (406)444-9456 or email at jrileV�a mt.gov. Sincerely, Jean A. Riley, P.E. Transportation Planning Engineer Policy, Program & Performance Analysis Bureau Enclosure: Executed Agreement Copies: Jeff Ebert, P.E. — Butte District Administrator Joe Walsh — Butte District Engineering Services Engineer Kyle Demars — Bozeman Area Maintenance Chief File Planning&Policy Analysis Bureau An Equal Opportunity Employer Rail,Transit and Planning Division Phone:(4061 444-3423 TTY: (800)335-7592 Fax: (406)444-7671 Web Page: www.mdt.mt.gov