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HomeMy WebLinkAbout04-02-18 City Commission Packet Materials - C3. Construction Agreement with MDT for Federal Aid Project Commission Memorandum REPORT TO: Honorable Mayor and City Commission FROM: Rick Hixson, City Engineer SUBJECT: Authorize the City Manager to sign the Construction Agreement for Maintenance with the Montana Department of Transportation (MDT) for Federal Aid Project No. UPP 1299(47) AGENDA ITEM TYPE: Consent MEETING DATE: April 2, 2018 RECOMMENDATION: Authorize the City Manager to sign the Construction Agreement for Maintenance for Federal Aid Project No. UPP 1299(47). BACKGROUND: MDT has prepared plans for an Urban Pavement Preservation Project (UPP) on several of the urban routes in Bozeman. The work to be done consists of chip sealing and milling and overlaying. The sections of street to be preserved are Oak Street from 19th Avenue to North 7th, Durston from North 19th to Rouse Avenue, Highland Boulevard from Kagy Boulevard to Curtiss Street, and Kagy Boulevard from South Willson Avenue to Fort Ellis Road. In order for the state to secure the Federal funding necessary for the project, the City must execute the attached maintenance agreement. The agreement details the city's obligations with respect to ongoing maintenance of these facilities. These obligations are already being met by the city and this agreement does not impose any new ones. UNRESOLVED ISSUES: None. FISCAL EFFECTS: None. ALTERNATIVES: As suggested by the City Commission. Attachments: 2 Originals Construction Agreement for Maintenance with the Montana Department of Transportation (MDT) for Federal Aid Project No. UPP 1299(47) 11 CN 9217000 BOZEMAN URBAN (UPP) Revised 4/25/17 1 City of Bozeman C O N S T R U C T I O N A G R E E M E N T F O R M A I N T E N A N C E 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” or “Department”, and the City of Bozeman, a Montana Municipal Corporation, hereinafter called the City. W I T N E S S E T H T H A T: THE PURPOSE OF THIS AGREEMENT IS TO SET FORTH THE RESPONSIBILITIES AND DUTIES OF THE STATE AND THE CITY WITH RESPECT TO A FEDERAL AID HIGHWAY AND ADJACENT PEDESTRIAN FACILITIES PROJECT WITHIN THE CITY OF BOZEMAN, MONTANA. I. WHEREAS, the State proposes to construct and/or reconstruct a certain highway AND ADJACENT PEDESTRIAN FACILITIES (SIDEWALKS) in and through the City, the construction being known as Federal Aid Project No. UPP 1299(47), also known as BOZEMAN - URBAN (UPP), CN 9217000, and WHEREAS, the construction will be over and upon: • Route U-1202 (Oak St.) in the City of Bozeman, beginning at approximately RP 0.000 (N. 19th Ave. N-412)) and extending easterly approximately 0.8 mi to RP 0.784 (Intersection of N. 7th Ave.(N-118)); • Route U-1204 (Durston Rd./Peach St.) in the City of Bozeman, beginning at approximately RP 0.000 (N. 19th Ave. (N-412)) and extending easterly approximately 1.5 mi to RP 1.467 (Intersection of N. Rouse Ave. (P-86)); • Route U-1215 (Highland Blvd.) in the City of Bozeman, beginning at approximately RP 0.00 (Kagy Blvd./Bozeman Trail Rd. (U-1212)) and extending northerly approximately 1.5 mi to RP 1.535 (Intersection of Curtiss St.); • Route U-1212 (Kagy Blvd./Bozeman Trail Rd.) in the City of Bozeman, beginning at approximately RP 1.047 (S. Willson Ave. (U-1209)) and extending easterly approximately 3.0 mi to RP 4.000 (Intersection of Fort Ellis Rd.), and WHEREAS, the State desires to receive Federal funds to construct the highway, and WHEREAS, in accordance with the State’s agreement with the Federal Highway Administration (FHWA) of the U. S. Department of Transportation, the State must ensure that certain requirements are met in order for the State to fulfill its obligations to the FHWA and for the project to be eligible for federal funds. Accordingly, the State includes federal requirements, which are among those hereinafter set forth, for this project, and the City agrees to them, and 12 CN 9217000 BOZEMAN URBAN (UPP) Revised 4/25/17 2 WHEREAS, this document must be duly executed and on record with the State and FHWA before the work contemplated can be awarded to contract, and WHEREAS, the City hereby concurs in the designation of the highway which was designated under Section 60-2-110, MCA, and WHEREAS, the City desires to have the construction done, the City deeming it to be a valuable and beneficial consideration, II. NOW, THEREFORE, THE PARTIES AGREE AS FOLLOWS: AT STATE EXPENSE, THE STATE AGREES TO DESIGN THE PROJECT, LET IT TO CONTRACT AND ADMINISTER THE CONTRACT FOR CONSTRUCTION AND WILL PERFORM ALL THE REMAINING FUNCTIONS AND DUTIES AND RESPONSIBILITIES SET FORTH HEREIN IN EXCHANGE FOR WHICH THE CITY AGREES THAT UPON COMPLETION OF THE PROJECT, DEEMING THE CONSTRUCTION A GOOD AND VALUABLE CONSIDERATION, IT WILL PERFORM ALL OF THE FUNCTIONS AND DUTIES AND RESPONSIBILITIES SET FORTH IN THIS AGREEMENT. THE DUTIES AND RESPONSIBILITIES OF EACH PARTY TO THIS AGREEMENT ARE LIMITED TO THE PROJECT AREA FROM N. 19TH AVE. TO N. 7TH AVE. ON OAK ST; FROM N. 19TH AVE. TO N. ROUSE AVE. ON DURSTON RD/PEACH ST.; FROM KAGY BLVD./BOZEMAN TRAIL RD. TO CURTISS ST. ON HIGHLAND BLVD.; AND FROM S. WILLSON AVE. TO FORT ELLIS RD. ON KAGY BLVD./BOZEMAN TRAIL RD. (A) Oak Street (U-1202) the City will conform with all requirements as set forth in the City/State Memorandum of Agreement Oak Street Corridor (U-1202) Maintenance Agreement” Executed on September 1, 2017. (B) Durston Road/Peach St (U-1204) (1) The City agrees to conform in all regards to Chapter 8 of Title 61, MCA, and will not take any action, by enacting an ordinance or otherwise, in contradiction of the traffic laws in Chapter 8 of Title 61, MCA, with specific reference, but not limited to, the following matters: (a) Installing any signs, signals, or markings not in conformance with the Standards approved by the FHWA pursuant to 23 USC §109(d). (b) Establishing a speed limit less than twenty-five (25) miles per hour in any urban district on the highway. (c) Establishing a speed limit of less than thirty-five (35) miles per hour outside an urban district on the highway. The City will modify or alter such established speed limits on the highway after a traffic and engineering investigation is 13 CN 9217000 BOZEMAN URBAN (UPP) Revised 4/25/17 3 made at the request of the State. (d) Erecting any markings, sign, signal or traffic control device that will give preference to local routes which intersect with the highway and no sign, signal or traffic control device will be erected or constructed, nor shall the establishment or modification of any speed zone, parking regulation or traffic marking which will affect traffic on the highway be made without express written permission of the State, and then only after proper traffic and engineering study indicates that such markings, sign, signal or traffic control device is required. (e) Erecting any lighting on the highway without express written permission of the State, and then only after proper traffic and engineering study indicates that such lighting devices are required. The plans for such lighting installation shall be approved by the State before erection. (f) Not requiring the stopping of all traffic at all intersecting streets, alleys and driveways before entering the highway. Where the City considers that such traffic control creates a hazardous situation, it will request a traffic and engineering study by the State. The State, after the study, may authorize express written modifications in the traffic control devices as may be in the public interest from a safety and convenience standpoint. (g) Prohibiting parallel parking on the highway; and (h) Allowing stopping, standing or parking of a vehicle in a place prohibited by §61-8-354, MCA. (i) For lighting projects inside of incorporated municipalities, the cost of operation and maintenance of the lighting shall be paid by the State; however, where an existing lighting district, which is paid for by a city, town or special improvement district, is replaced or upgraded, the city, town or special improvement district shall continue paying the amount of the previous payments toward the cost of operation and maintenance of the new or revised lighting system. If and when the cost of energy or maintenance is raised by the utility company, the city, town or special improvement district shall pay their proportionate share of the rate increase. (2) The State, after a traffic and engineering investigation of any speed zone, parking regulation or traffic control device, may require the City to modify or remove such existing speed zone, parking regulation or traffic control device upon the highway. (3) The State will retain the authority and responsibility for issuing approach and encroachment permits onto, upon or over right-of-way of the highway by anyone. (4) The City has reviewed and approved the plans. 14 CN 9217000 BOZEMAN URBAN (UPP) Revised 4/25/17 4 (5) The City will continue to enforce the ordinances, laws and/or regulations necessary and essential for the operation of the improvements as planned. (6) All signs required to enforce City ordinances shall be maintained by the City. (7) The City is responsible for costs for any locally-required permits, including but not limited to building permits, electrical permits, plumbing permits, excavation permits, engineering permits, and/or encroachment permits. (8) Sidewalk Maintenance. (a) Upon completion of and in consideration for the project, and at no additional cost to the State, the City agrees to assume full responsibility for and control of maintenance of the sidewalks bordering Durston Rd/Peach St (U-1204) in the area of the project, except for the intersections at N 19th Ave (N-412), N 7th Ave (N-118) and N Rouse Ave (P-86). The City may, in its discretion, enforce state laws and its local ordinances, if any, to recover all costs associated with its sidewalk maintenance activities from persons or entities who own property adjacent to the sidewalks and/or who receive the benefit of the maintenance performed. (i) For purposes of this agreement, “Maintenance” means: removal of and/or surface repair of any obstacles or impediment to the safe and efficient use of the sidewalk by pedestrians, including removal of snow and ice, repair of chipped, fractured, or broken walk or curb from any cause including but not limited to frost, landscaping (tree roots), or permitted encroachments. (ii) The City has the authority and responsibility to issue encroachment permits to private parties to allow for the placement or installation of encroachments on the sidewalk within the right of way according to the terms and conditions established by the City by ordinance or rule subject only to insuring that any permit issued does not in any way interfere with the use of the vehicle travel lanes nor with the safe and efficient use of the sidewalk by pedestrians. As an integral part of the responsibility is the authority and duty to remove any unpermitted encroachment. (iii) The City may by ordinance or regulation impose landscaping and/or sidewalk construction responsibilities on property owners whose property abuts the state facility provided that any new sidewalk construction completed under the City authority on the highway right of way meets or exceeds the specifications and standards of the State including compliance with any state or federal handicapped access laws and regulations. (iv) For purposes of this agreement, “Maintenance” does not mean repair or replacement of any sidewalk segment six feet or more in continuous 15 CN 9217000 BOZEMAN URBAN (UPP) Revised 4/25/17 5 length which cannot be repaired without complete removal and replacement of the existing walk and subsurface base. Upon notice that a segment of sidewalk must be replaced, the City will take whatever steps necessary to complete the replacement within 120 days, (weather permitting), subject only to the temporary fix referred to in: 8(b) below. (v) In the event of a disagreement as to whether a sidewalk segment can be repaired or must be replaced, the parties agree that the issue will be resolved by agreement by the City Engineer or his designee and the Department of Transportation Maintenance Administrator or his designee. If necessary, the Director of the Department of Transportation and the City Manager may be asked to resolve the issue. (b) The parties agree that they have a joint and mutual interest to build and maintain the sidewalks in a safe manner. To that end there is a joint responsibility to inspect the sidewalks on a periodic basis, at least annually to discover any potential sections that require repair or replacement. Regardless of who identifies an area of potential harm, they shall immediately notify the other party to the agreement and shall jointly take whatever steps necessary to warn the users of the walk until such time as repair or replacement can be completed. In the event replacement is deemed necessary, temporary repairs may be performed until such time as reconstruction can be programmed and completed. In the event replacement or reconstruction is required, the City shall use any eligible state or federal funding to perform the work and upon completion notify the City after which the City once again is responsible for future maintenance. (c) City agrees that the maintenance responsibility is in effect until the sidewalks are reconstructed or the roadway is removed from the Urban System, unless otherwise agreed to by the parties. (d) If, during its inspections, the City encounters a condition on the sidewalk that it believes is caused by a design or construction defect or by the negligent act or omission of a State agent or employee, the City will immediately notify the State of the existence and location of the defect and provide the State with a detailed explanation of the engineering basis for its belief that the condition is caused by a design or construction defect or the negligent act or omission of a State agent or employee. (e) This section does not supersede, discharge, or extinguish any prior agreement between the parties, nor will any future agreement between the parties supersede, discharge, or extinguish this agreement, unless by specific reference and in clear terms. (9) Roadway Maintenance: 16 CN 9217000 BOZEMAN URBAN (UPP) Revised 4/25/17 6 (a) Upon completion of and in consideration for the project, and at no additional cost to the State, the City agrees to assume full responsibility for and control of maintenance of the Durston/Peach ST within the City including the roadway surface, pavement markings, and curb and gutter. Specifically, the City will maintain or cause to be maintained the roadway surface of Durston/Peach St from N 19th Ave to N Rouse Ave, except for the intersections at N 19th Ave (N-412), N 7th Ave (N-118) and N Rouse Ave (P- 86). The City may, in its discretion, enforce state laws and its local ordinances, if any, to recover all costs associated with its roadway maintenance activities from persons or entities who own property adjacent to the roadway and/or who receive the benefit of the maintenance performed. (i) For purposes of this agreement, “Roadway Maintenance” means: removal of and/or surface repair of any obstacles or impediment to the safe and efficient use of the roadway by the traveling public, including removal of snow and ice per the City standard, repair of chipped, fractured, or broken curb from any cause including but not limited to frost, landscaping (tree roots), or permitted encroachments. (ii) The City has the authority and responsibility to issue encroachment permits to private parties to allow for the placement or installation of encroachments on the roadway within the right of way according to the terms and conditions established by the City by ordinance or rule subject only to insuring that any permit issued does not in any way interfere with the use of the vehicle travel lanes nor with the safe and efficient use of the sidewalk by pedestrians. As an integral part of the responsibility is the authority and duty to remove any unpermitted encroachment. (iii) The City may by ordinance or resolution establish parking rules and regulations, including installation of metered parking. (iv) For purposes of this agreement, “Roadway Maintenance” does not mean repair or replacement of any roadway segment 100 feet or more in continuous length which cannot be repaired without complete removal and replacement of the existing roadway and subsurface base. Upon notice that a segment of roadway must be replaced, the City will take whatever steps necessary to complete the replacement within 120 days, (weather permitting), subject only to the temporary fix referred to in: 9(b) below. (v) In the event of a disagreement as to whether a roadway segment can be repaired or must be replaced, the parties agree that the issue will be resolved by agreement by the Chief Executive or his designee and the Department of Transportation Maintenance Administrator or his designee. If necessary, the Director of the Department of Transportation and the Chief Executive may be asked to resolve the issue. (b) The parties agree that they have a joint and mutual interest to build and maintain the roadway in a safe manner. To that end there is a joint 17 CN 9217000 BOZEMAN URBAN (UPP) Revised 4/25/17 7 responsibility to inspect the roadway on a periodic basis, at least annually to discover any potential sections that require repair or replacement. Regardless of who identifies an area of potential harm, they shall immediately notify the other party to the agreement and shall jointly take whatever steps necessary to warn the users of the roadway until such time as repair or replacement can be completed. In the event replacement is deemed necessary, temporary repairs may be performed until such time as reconstruction can be programmed and completed. In the event replacement or reconstruction is required, the City shall use any eligible state, federal, local, or private funding to perform the work and upon completion City once again is responsible for future roadway maintenance. (c) City agrees that the maintenance responsibility is in effect until the roadway are reconstructed, unless otherwise agreed to by the parties. (d) If, during its inspections, the City encounters a condition on the roadway that it believes is caused by a design or construction defect or by the negligent act or omission of a State agent or employee, the City will immediately notify the State of the existence and location of the defect and provide the State with a detailed explanation of the engineering basis for its belief that the condition is caused by a design or construction defect or the negligent act or omission of a State agent or employee. (e) This section does not supersede, discharge, or extinguish any prior agreement between the parties, nor will any future agreement between the parties supersede, discharge, or extinguish this agreement, unless by specific reference and in clear terms. (C) Highland Blvd (U1215) (1) The City agrees to conform in all regards to Chapter 8 of Title 61, MCA, and will not take any action, by enacting an ordinance or otherwise, in contradiction of the traffic laws in Chapter 8 of Title 61, MCA, with specific reference, but not limited to, the following matters: (a) Installing any signs, signals, or markings not in conformance with the Standards approved by the FHWA pursuant to 23 USC §109(d). (b) Establishing a speed limit less than twenty-five (25) miles per hour in any urban district on the highway. (c) Establishing a speed limit of less than thirty-five (35) miles per hour outside an urban district on the highway. The City will modify or alter such established speed limits on the highway after a traffic and engineering investigation is made at the request of the State. (d) Erecting any markings, sign, signal or traffic control device that will give 18 CN 9217000 BOZEMAN URBAN (UPP) Revised 4/25/17 8 preference to local routes which intersect with the highway and no sign, signal or traffic control device will be erected or constructed, nor shall the establishment or modification of any speed zone, parking regulation or traffic marking which will affect traffic on the highway be made without express written permission of the State, and then only after proper traffic and engineering study indicates that such markings, sign, signal or traffic control device is required. (e) Erecting any lighting on the highway without express written permission of the State, and then only after proper traffic and engineering study indicates that such lighting devices are required. The plans for such lighting installation shall be approved by the State before erection. (f) Not requiring the stopping of all traffic at all intersecting streets, alleys and driveways before entering the highway. Where the City considers that such traffic control creates a hazardous situation, it will request a traffic and engineering study by the State. The State, after the study, may authorize express written modifications in the traffic control devices as may be in the public interest from a safety and convenience standpoint. (g) Prohibiting parallel parking on the highway; and (h) Allowing stopping, standing or parking of a vehicle in a place prohibited by §61-8-354, MCA. (i) For lighting projects inside of incorporated municipalities, the cost of operation and maintenance of the lighting shall be paid by the State; however, where an existing lighting district, which is paid for by a city, town or special improvement district, is replaced or upgraded, the city, town or special improvement district shall continue paying the amount of the previous payments toward the cost of operation and maintenance of the new or revised lighting system. If and when the cost of energy or maintenance is raised by the utility company, the city, town or special improvement district shall pay their proportionate share of the rate increase. (2) The State, after a traffic and engineering investigation of any speed zone, parking regulation or traffic control device, may require the City to modify or remove such existing speed zone, parking regulation or traffic control device upon the highway. (3) The State will retain the authority and responsibility for issuing approach and encroachment permits onto, upon or over right-of-way of the highway by anyone. (4) The City has reviewed and approved the plans. 19 CN 9217000 BOZEMAN URBAN (UPP) Revised 4/25/17 9 (5) The City will continue to enforce the ordinances, laws and/or regulations necessary and essential for the operation of the improvements as planned. (6) All signs required to enforce City ordinances shall be maintained by the City. (7) The City is responsible for costs for any locally-required permits, including but not limited to building permits, electrical permits, plumbing permits, excavation permits, engineering permits, and/or encroachment permits. (8) Sidewalks and Shared Use Path Maintenance. (a) Upon completion of and in consideration for the project, and at no additional cost to the State, the City agrees to assume full responsibility for and control of maintenance of the Shared Use Path and any sidewalks installed bordering Highland Blvd (U1215) in the area of the project. The City may, in its discretion, enforce state laws and its local ordinances, if any, to recover all costs associated with its pedestrian facilities maintenance activities from persons or entities who own property adjacent to the pedestrian facilities and/or who receive the benefit of the maintenance performed. (i) For purposes of this agreement, “Maintenance” means: removal of and/or surface repair of any obstacles or impediment to the safe and efficient use of the sidewalk or shared use path by pedestrians, including removal of snow and ice, repair of chipped, fractured, or broken walk or curb from any cause including but not limited to frost, landscaping (tree roots), or permitted encroachments. (ii) The City has the authority and responsibility to issue encroachment permits to private parties to allow for the placement or installation of encroachments on the sidewalk within the right of way according to the terms and conditions established by the City by ordinance or rule subject only to insuring that any permit issued does not in any way interfere with the use of the vehicle travel lanes nor with the safe and efficient use of the sidewalk by pedestrians. As an integral part of the responsibility is the authority and duty to remove any unpermitted encroachment. No encroachments are allowed on the shared use path. (iii) The City may by ordinance or regulation impose landscaping and/or sidewalk construction responsibilities on property owners whose property abuts the state facility provided that any new sidewalk construction completed under the City authority on the highway right of way meets or exceeds the specifications and standards of the State including compliance with any state or federal handicapped access laws and regulations. (iv) For purposes of this agreement, “Maintenance” does not mean repair 20 CN 9217000 BOZEMAN URBAN (UPP) Revised 4/25/17 10 or replacement of any sidewalk or shared use path segment six feet or more in continuous length which cannot be repaired without complete removal and replacement of the existing walk and subsurface base. Upon notice that a segment of sidewalk or shared use path must be replaced, the City will take whatever steps necessary to complete the replacement within 120 days, (weather permitting), subject only to the temporary fix referred to in: 8(b) below. (v) In the event of a disagreement as to whether a sidewalk or shared use path segment can be repaired or must be replaced, the parties agree that the issue will be resolved by agreement by the City Engineer or his designee and the Department of Transportation Maintenance Administrator or his designee. If necessary, the Director of the Department of Transportation and the City Manager may be asked to resolve the issue. (b) The parties agree that they have a joint and mutual interest to build and maintain the sidewalks and shared use path in a safe manner. To that end there is a joint responsibility to inspect the sidewalks and shared use path on a periodic basis, at least annually to discover any potential sections that require repair or replacement. Regardless of who identifies an area of potential harm, they shall immediately notify the other party to the agreement and shall jointly take whatever steps necessary to warn the users of the pedestrian facility until such time as repair or replacement can be completed. In the event replacement is deemed necessary, temporary repairs may be performed until such time as reconstruction can be programmed and completed. In the event replacement or reconstruction is required, the City shall use any eligible state or federal funding to perform the work and upon completion notify the City after which the City once again is responsible for future maintenance. (c) City agrees that the maintenance responsibility is in effect until the sidewalks are reconstructed or the roadway is removed from the Urban System, unless otherwise agreed to by the parties. (d) If, during its inspections, the City encounters a condition on the pedestrian facilities that it believes is caused by a design or construction defect or by the negligent act or omission of a State agent or employee, the City will immediately notify the State of the existence and location of the defect and provide the State with a detailed explanation of the engineering basis for its belief that the condition is caused by a design or construction defect or the negligent act or omission of a State agent or employee. (e) This section does not supersede, discharge, or extinguish any prior agreement between the parties, nor will any future agreement between the parties supersede, discharge, or extinguish this agreement, unless by specific reference and in clear terms. 21 CN 9217000 BOZEMAN URBAN (UPP) Revised 4/25/17 11 (9) Roadway Maintenance: (a) Upon completion of and in consideration for the project, and at no additional cost to the State, the City agrees to assume full responsibility for and control of maintenance of the Highland Blvd within the City including the roadway surface, pavement markings, and curb and gutter. Specifically, the City will maintain or cause to be maintained the roadway surface of Highland Blvd from Kagy Blvd /Bozeman Trail Rd to the intersection of Curtis Street. The City may, in its discretion, enforce state laws and its local ordinances, if any, to recover all costs associated with its roadway maintenance activities from persons or entities who own property adjacent to the roadway and/or who receive the benefit of the maintenance performed. (i) For purposes of this agreement, “Roadway Maintenance” means: removal of and/or surface repair of any obstacles or impediment to the safe and efficient use of the roadway by the traveling public, including removal of snow and ice per the City standard, repair of chipped, fractured, or broken curb from any cause including but not limited to frost, landscaping (tree roots), or permitted encroachments. (ii) The City has the authority and responsibility to issue encroachment permits to private parties to allow for the placement or installation of encroachments on the roadway within the right of way according to the terms and conditions established by the City by ordinance or rule subject only to insuring that any permit issued does not in any way interfere with the use of the vehicle travel lanes nor with the safe and efficient use of the pedestrian facilities. As an integral part of the responsibility is the authority and duty to remove any unpermitted encroachment. (iii) The City may by ordinance or resolution establish parking rules and regulations, including installation of metered parking. (iv) For purposes of this agreement, “Roadway Maintenance” does not mean repair or replacement of any roadway segment 100 feet or more in continuous length which cannot be repaired without complete removal and replacement of the existing roadway and subsurface base. Upon notice that a segment of roadway must be replaced, the City will take whatever steps necessary to complete the replacement within 120 days, (weather permitting), subject only to the temporary fix referred to in: 9(b) below. (v) In the event of a disagreement as to whether a roadway segment can be repaired or must be replaced, the parties agree that the issue will be resolved by agreement by the Chief Executive or his designee and 22 CN 9217000 BOZEMAN URBAN (UPP) Revised 4/25/17 12 the Department of Transportation Maintenance Administrator or his designee. If necessary, the Director of the Department of Transportation and the Chief Executive may be asked to resolve the issue. (b) The parties agree that they have a joint and mutual interest to build and maintain the roadway in a safe manner. To that end there is a joint responsibility to inspect the roadway on a periodic basis, at least annually to discover any potential sections that require repair or replacement. Regardless of who identifies an area of potential harm, they shall immediately notify the other party to the agreement and shall jointly take whatever steps necessary to warn the users of the roadway until such time as repair or replacement can be completed. In the event replacement is deemed necessary, temporary repairs may be performed until such time as reconstruction can be programmed and completed. In the event replacement or reconstruction is required, the City shall use any eligible state, federal, local, or private funding to perform the work and upon completion City once again is responsible for future roadway maintenance. (c) City agrees that the maintenance responsibility is in effect until the roadway are reconstructed, unless otherwise agreed to by the parties. (d) If, during its inspections, the City encounters a condition on the roadway that it believes is caused by a design or construction defect or by the negligent act or omission of a State agent or employee, the City will immediately notify the State of the existence and location of the defect and provide the State with a detailed explanation of the engineering basis for its belief that the condition is caused by a design or construction defect or the negligent act or omission of a State agent or employee. (e) This section does not supersede, discharge, or extinguish any prior agreement between the parties, nor will any future agreement between the parties supersede, discharge, or extinguish this agreement, unless by specific reference and in clear terms. (D) Kagy Blvd/Bozeman Trail Rd (U-1212) (1) The City agrees to conform in all regards to Chapter 8 of Title 61, MCA, and will not take any action, by enacting an ordinance or otherwise, in contradiction of the traffic laws in Chapter 8 of Title 61, MCA, with specific reference, but not limited to, the following matters: (a) Installing any signs, signals, or markings not in conformance with the Standards approved by the FHWA pursuant to 23 USC §109(d). 23 CN 9217000 BOZEMAN URBAN (UPP) Revised 4/25/17 13 (b) Establishing a speed limit less than twenty-five (25) miles per hour in any urban district on the highway. (c) Establishing a speed limit of less than thirty-five (35) miles per hour outside an urban district on the highway. The City will modify or alter such established speed limits on the highway after a traffic and engineering investigation is made at the request of the State. (d) Erecting any markings, sign, signal or traffic control device that will give preference to local routes which intersect with the highway and no sign, signal or traffic control device will be erected or constructed, nor shall the establishment or modification of any speed zone, parking regulation or traffic marking which will affect traffic on the highway be made without express written permission of the State, and then only after proper traffic and engineering study indicates that such markings, sign, signal or traffic control device is required. (e) Erecting any lighting on the highway without express written permission of the State, and then only after proper traffic and engineering study indicates that such lighting devices are required. The plans for such lighting installation shall be approved by the State before erection. (f) Not requiring the stopping of all traffic at all intersecting streets, alleys and driveways before entering the highway. Where the City considers that such traffic control creates a hazardous situation, it will request a traffic and engineering study by the State. The State, after the study, may authorize express written modifications in the traffic control devices as may be in the public interest from a safety and convenience standpoint. (g) Prohibiting parallel parking on the highway; and (h) Allowing stopping, standing or parking of a vehicle in a place prohibited by §61-8-354, MCA. (i) For lighting projects inside of incorporated municipalities, the cost of operation and maintenance of the lighting shall be paid by the State; however, where an existing lighting district, which is paid for by a city, town or special improvement district, is replaced or upgraded, the city, town or special improvement district shall continue paying the amount of the previous payments toward the cost of operation and maintenance of the new or revised lighting system. If and when the cost of energy or maintenance is raised by the utility company, the city, town or special improvement district shall pay their proportionate share of the rate increase. (2) The State, after a traffic and engineering investigation of any speed zone, parking regulation or traffic control device, may require the City to modify or 24 CN 9217000 BOZEMAN URBAN (UPP) Revised 4/25/17 14 remove such existing speed zone, parking regulation or traffic control device upon the highway. (3) The State will retain the authority and responsibility for issuing approach and encroachment permits onto, upon or over right-of-way of the highway by anyone. (4) Should the City incorporate beyond the present City limits, and such newly annexed area include portions of this Federal Aid Project not now within the City limits, then this agreement, by reference herein, will also apply to the newly annexed area. (5) The City has reviewed and approved the plans. (6) The City will continue to enforce the ordinances, laws and/or regulations necessary and essential for the operation of the improvements as planned. (7) All signs required to enforce City ordinances shall be maintained by the City. (8) The City is responsible for costs for any locally-required permits, including but not limited to building permits, electrical permits, plumbing permits, excavation permits, engineering permits, and/or encroachment permits. (9) Sidewalk Maintenance. (a) Upon completion of and in consideration for the project, and at no additional cost to the State, the City agrees to assume full responsibility for and control of maintenance of any sidewalks installed bordering Kagy Blvd/Bozeman Trail Rd (U-1212) in the area of the project. The City may, in its discretion, enforce state laws and its local ordinances, if any, to recover all costs associated with its sidewalk maintenance activities from persons or entities who own property adjacent to the sidewalks and/or who receive the benefit of the maintenance performed. (i) For purposes of this agreement, “Maintenance” means: removal of and/or surface repair of any obstacles or impediment to the safe and efficient use of the sidewalk or shared use path by pedestrians, including removal of snow and ice, repair of chipped, fractured, or broken walk or curb from any cause including but not limited to frost, landscaping (tree roots), or permitted encroachments. (ii) The City has the authority and responsibility to issue encroachment permits to private parties to allow for the placement or installation of encroachments on the sidewalk within the right of way according to the terms and conditions established by the City by ordinance or rule subject only to insuring that any permit issued does not in any way interfere with the use of the vehicle travel lanes nor with the safe and 25 CN 9217000 BOZEMAN URBAN (UPP) Revised 4/25/17 15 efficient use of the sidewalk by pedestrians. As an integral part of the responsibility is the authority and duty to remove any unpermitted encroachment. No encroachments are allowed on the shared use path. (iii) The City may by ordinance or regulation impose landscaping and/or sidewalk construction responsibilities on property owners whose property abuts the state facility provided that any new sidewalk construction completed under the City authority on the highway right of way meets or exceeds the specifications and standards of the State including compliance with any state or federal handicapped access laws and regulations. (iv) For purposes of this agreement, “Maintenance” does not mean repair or replacement of any sidewalk or shared use path segment six feet or more in continuous length which cannot be repaired without complete removal and replacement of the existing walk and subsurface base. Upon notice that a segment of sidewalk must be replaced, the City will take whatever steps necessary to complete the replacement within 120 days, (weather permitting), subject only to the temporary fix referred to in: 9(b) below. (v) In the event of a disagreement as to whether a sidewalk segment can be repaired or must be replaced, the parties agree that the issue will be resolved by agreement by the City Engineer or his designee and the Department of Transportation Maintenance Administrator or his designee. If necessary, the Director of the Department of Transportation and the City Manager may be asked to resolve the issue. (b) The parties agree that they have a joint and mutual interest to build and maintain the sidewalks in a safe manner. To that end there is a joint responsibility to inspect the sidewalks on a periodic basis, at least annually to discover any potential sections that require repair or replacement. Regardless of who identifies an area of potential harm, they shall immediately notify the other party to the agreement and shall jointly take whatever steps necessary to warn the users of the pedestrian facility until such time as repair or replacement can be completed. In the event replacement is deemed necessary, temporary repairs may be performed until such time as reconstruction can be programmed and completed. In the event replacement or reconstruction is required, the City shall use any eligible state or federal funding to perform the work and upon completion notify the City after which the City once again is responsible for future maintenance. (c) City agrees that the maintenance responsibility is in effect until the sidewalks are reconstructed or this route is removed from the Urban System, unless otherwise agreed to by the parties. 26 CN 9217000 BOZEMAN URBAN (UPP) Revised 4/25/17 16 (d) If, during its inspections, the City encounters a condition on the pedestrian facilities that it believes is caused by a design or construction defect or by the negligent act or omission of a State agent or employee, the City will immediately notify the State of the existence and location of the defect and provide the State with a detailed explanation of the engineering basis for its belief that the condition is caused by a design or construction defect or the negligent act or omission of a State agent or employee. (e) This section does not supersede, discharge, or extinguish any prior agreement between the parties, nor will any future agreement between the parties supersede, discharge, or extinguish this agreement, unless by specific reference and in clear terms. (10) Roadway Maintenance: (a) Upon completion of and in consideration for the project, and at no additional cost to the State, the City agrees to assume full responsibility for and control of maintenance of the Kagy Blvd within the City including the roadway surface, pavement markings, and curb and gutter. Specifically, the City will maintain or cause to be maintained the roadway surface of Kagy Blvd/Bozeman Trail Road from S Wilson Ave and extending to the intersection of Fort Ellis Rd. The City may, in its discretion, enforce state laws and its local ordinances, if any, to recover all costs associated with its roadway maintenance activities from persons or entities who own property adjacent to the roadway and/or who receive the benefit of the maintenance performed. (i) For purposes of this agreement, “Roadway Maintenance” means: removal of and/or surface repair of any obstacles or impediment to the safe and efficient use of the roadway by the traveling public, including removal of snow and ice per the City standard, repair of chipped, fractured, or broken curb from any cause including but not limited to frost, landscaping (tree roots), or permitted encroachments. (ii) The City has the authority and responsibility to issue encroachment permits to private parties to allow for the placement or installation of encroachments on the roadway within the right of way according to the terms and conditions established by the City by ordinance or rule subject only to insuring that any permit issued does not in any way interfere with the use of the vehicle travel lanes nor with the safe and efficient use of the pedestrian facilities. As an integral part of the responsibility is the authority and duty to remove any unpermitted encroachment. (iii) The City may by ordinance or resolution establish parking rules and regulations, including installation of metered parking. 27 CN 9217000 BOZEMAN URBAN (UPP) Revised 4/25/17 17 (iv) For purposes of this agreement, “Roadway Maintenance” does not mean repair or replacement of any roadway segment 100 feet or more in continuous length which cannot be repaired without complete removal and replacement of the existing roadway and subsurface base. Upon notice that a segment of roadway must be replaced, the City will take whatever steps necessary to complete the replacement within 120 days, (weather permitting), subject only to the temporary fix referred to in: 10(b) below. (v) In the event of a disagreement as to whether a roadway segment can be repaired or must be replaced, the parties agree that the issue will be resolved by agreement by the Chief Executive or his designee and the Department of Transportation Maintenance Administrator or his designee. If necessary, the Director of the Department of Transportation and the Chief Executive may be asked to resolve the issue. (b) The parties agree that they have a joint and mutual interest to build and maintain the roadway in a safe manner. To that end there is a joint responsibility to inspect the roadway on a periodic basis, at least annually to discover any potential sections that require repair or replacement. Regardless of who identifies an area of potential harm, they shall immediately notify the other party to the agreement and shall jointly take whatever steps necessary to warn the users of the roadway until such time as repair or replacement can be completed. In the event replacement is deemed necessary, temporary repairs may be performed until such time as reconstruction can be programmed and completed. In the event replacement or reconstruction is required, the City shall use any eligible state, federal, local, or private funding to perform the work and upon completion City once again is responsible for future roadway maintenance. (c) City agrees that the maintenance responsibility is in effect until the roadway are reconstructed, unless otherwise agreed to by the parties. (d) If, during its inspections, the City encounters a condition on the roadway that it believes is caused by a design or construction defect or by the negligent act or omission of a State agent or employee, the City will immediately notify the State of the existence and location of the defect and provide the State with a detailed explanation of the engineering basis for its belief that the condition is caused by a design or construction defect or the negligent act or omission of a State agent or employee. (e) This section does not supersede, discharge, or extinguish any prior agreement between the parties, nor will any future agreement between the 28 CN 9217000 BOZEMAN URBAN (UPP) Revised 4/25/17 18 parties supersede, discharge, or extinguish this agreement, unless by specific reference and in clear terms. (E) Storm Water Management (1) Construction Storm Water General Permit (a) Upon completion of all physical work associated with construction activity, the parties will inspect the temporary erosion and sediment control measures and devices as part of the Department’s final inspection with the Department’s contractor. The Department will provide the City with the Storm Water Pollution Prevention Plan (SWPPP) package for City review. Within ten (10) days of receiving the package, the City will provide the Department with an itemized list of any outstanding records or deficiencies associated with the SWPPP. Upon the Department’s and City’s approval of site conditions and contractor records, the Department will provide the City a Permit Transfer Notification (PTN) form. The City will return the signed PTN form to the Department within ten (10) business days. The Department will forward the completed PTN form and transfer fees to the Montana Department of Environmental Quality (DEQ). (b) Once DEQ transfers the Construction Storm Water General Permit Authorization, the City will inspect, maintain, and revise the Best Management Practice devices (BMPs) in accordance with DEQ permit requirements until final stabilization is met and permit coverage is terminated. (c) The Department agrees to pay annual fees associated with permit coverage until termination. To assure payment, the City must forward invoices to the Department’s Environmental Services Bureau for payment. (2) Small Municipal Separate Storm Sewer System (MS4) Permit (a) The Department concludes, and City agrees that the project work is designed in compliance with applicable Small MS4 Permit requirements. (b) The City agrees to operate, monitor and maintain storm water management features in compliance with applicable MS4 requirements. (F) The City will continue adequate engineering capabilities to ensure that a continuing traffic engineering function is carried out on the project. (G) Term – This Agreement shall continue until all parties agree to supersede this Agreement within another Agreement. (H) 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 29 CN 9217000 BOZEMAN URBAN (UPP) Revised 4/25/17 19 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. (I) Insurance - The City shall maintain for the duration of the Agreement at their cost and expense insurance 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 their agents, employees, representative, assigns or subcontractors. This insurance shall cover such claims as may be caused by any intentional or negligent act or omission. a) Commercial General Liability Insurance: The City shall purchase and maintain occurrence coverage with combined single limits for bodily injury, personal injury, and property damage as set forth below, to cover such claims as may be caused by any act, omission, or negligence of the City or their officers, agents, representatives, assigns, or subcontractors. Commercial General Liability insurance covering all operations under the Agreement shall have coverage substantially similar to the standard ISO Commercial General Liability Insurance policy, the limits shall be: Each Occurrence $1,000,000.00 General Aggregate $2,000,000.00 Excess/Umbrella Liability Insurance $2,000,000.00 Any party classified as a governmental entity may meet the insurance requirements of this Agreement through self-insurance or risk sharing pool coverage which meets Montana statutory tort limits. Proof of self-insurance or risk sharing pool coverage must be provided to MDT before commencement of the Agreement activities. The City must notify the State immediately of any change in insurance coverage during the term of this Agreement, and must meet the limits for private insurance shown above should self-insurance or risk sharing pool coverage be discontinued. b) Certificates of Insurance: Insurance is to be placed with an insurer with a Best’s rating of no less than A-. The Best’s rating requirement does not apply to any governmental entity self-insurance or risk-sharing pool insurance 30 CN 9217000 BOZEMAN URBAN (UPP) Revised 4/25/17 20 coverage. The City must notify the State immediately of any material change in insurance coverage, such as changes in limits, coverages, changes in status of policy, etc. The State reserves the right to require complete copies of insurance policies at any time. c) Workers’ Compensation Insurance: The City is required to maintain workers’ compensation insurance or an independent contractor’s exemption covering the contractor and/or employees 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. (H) Public Safety - It is agreed, if any repairs to the Project or future City construction projects must be done to prevent a public hazard, the City will immediately protect the area from public access, contact MDT Butte Area Maintenance, and take corrective action to repair the hazard. (J) Invoicing and Indirect Cost (IDC) – If MDT incurs any costs as a result of a public emergency, as a result of the City not meeting the requirements in this Agreement which necessitates action on MDT’s part concerning the maintenance or repair of the City’s Project, or future City construction 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 defined by 2 CFR Part 200, Appendix VII. MDT’s current IDC rate is 10.96% for fiscal year 2016 (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 Attention: Craig Woolard PO Box 1230 Bozeman, MT 59771-1230 ii. Payments shall be made to: Montana Department of Transportation Attention: Collections 2701 Prospect Avenue PO Box 201001 Helena, MT 59620-1001 31 CN 9217000 BOZEMAN URBAN (UPP) Revised 4/25/17 21 (K) 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. III The CITY, for itself, its assignees and successors in interest, agrees to comply with the provisions of Exhibit A, “MDT Nondiscrimination and Disability Accommodation Notice,” which is attached hereto and incorporated by reference. The CITY is referred to as the “PARTY” in said Exhibit, and the City’s duties and responsibilities are those duties and responsibilities of the “PARTY.” 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 by the United States Department of Justice 2010 ADA Standards for Accessibility Design, United States Access Board Proposed Guidelines for Pedestrian Facilities in the Public Right-of-Way (2011 PROWAG), and MDT’s detailed drawings, 608 series. THE PARTIES UNDERSTAND AND AGREE THAT THE FAILURE OF EITHER PARTY TO PERFORM THE DUTIES AND RESPONSIBILITIES SET FORTH IN THIS AGREEMENT MAY BE DEEMED A MATERIAL BREACH OF THE CONTRACT FOR WHICH ANY AVAILABLE REMEDY PROVIDED BY LAW MAY BE ASSERTED IN THE DISTRICT COURT. IN ANY LEGAL PROCEEDING TO ENFORCE ANY PROVISION OF THIS AGREEMENT OR FOR BREACH OF THIS AGREEMENT, THE PREVAILING PARTY SHALL BE ENTITLED TO RECOVER ITS COSTS AND ATTORNEY’S FEES. IN WITNESS WHEREOF, the State’s authorized representative has 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 __________________________________ _______________________, 20 Administrator - Engineering Division By ________________________________ Approved for Legal Content 32 CN 9217000 BOZEMAN URBAN (UPP) Revised 4/25/17 22 By ________________________________ Approved Civil Rights ATTEST: CITY OF BOZEMAN By_________________________________ By___________________________ Robin Crough, City Clerk Andrea Surratt, City Manger APPROVED AS TO FORM: By_________________________________ Greg Sullivan, City Attorney I, Robin Crough, City Clerk of the City of Bozeman, hereby certify that this agreement was regularly adopted by the City of Bozeman at a meeting held on the ______ day of ____________________, 2018; and that the City of Bozeman authorized the City Manager to sign this agreement on behalf of the City of Bozeman. _____________________________________ Robin Crough, City Clerk 33 CN 9217000 BOZEMAN URBAN (UPP) Revised 01/2018 23 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). 34 CN 9217000 BOZEMAN URBAN (UPP) Revised 01/2018 24 iii. Contact information for PARTY’s representative tasked with handling non- discrimination complaints and providing reasonable accommodations under the ADA. 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. 35 CN 9217000 BOZEMAN URBAN (UPP) Revised 01/2018 25 (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. (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. §§ 36 CN 9217000 BOZEMAN URBAN (UPP) Revised 01/2018 26 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; - 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. 37