HomeMy WebLinkAbout18- Project Funding and Maintenance Agreement - Montana Department of Transportation (MDT) - Path Pavement Preservation PATH PAVEMENT PRESERVATION-BOZ
UPN 9452
MONTANA TRANSPORTATION ALTERNATIVES PROGRAM
PROJECT FUNDING AND MAINTENANCE AGREEMENT
THIS AGREEMENT is made and entered into by and between the State of Montana, acting by and
through its Department of Transportation, P.O. Box 201001, Helena MT 59620-1001, hereinafter called
"MDT" or the "State", and the City of Bozeman, hereinafter called the "City" together referred to as
"the Parties".
WHEREAS, the City was successful in obtaining Montana Transportation Alternative (TA) funds to
develop and construct a pavement preservation project on five separate path segments in Bozeman
through TA project, UPN 9452000, titled PATH PAVEMENT PRESERVATION-BOZ (hereinafter the
"Project"); and,
WHEREAS, the estimated cost of the Project's development as noted in Table 1 of this agreement will
be financed by the State using TA funds and matching funds provided by the City; and,
NOW, THEREFORE, in consideration of the covenants herein contained, the parties agree that:
1. The State will design, advertise for bid and let and award the Project to provide pavement
preservation consisting of patching, fog sealing, and ADA upgrades at the intersections. The Project
shall be located in Bozeman on: the Highland Boulevard Path along the west side of Highland
Boulevard between Main Street and Kagy Boulevard; the South 19th Avenue Path along the east side of
South 19th Avenue between College Street and the FWP office north of Lincoln Street; the Library Path
(Gallagator Trail) from the east side of the Bozeman Public Library to South Church Avenue; the College
Street Path on the south side of College Street between South 11th Avenue and South 29th Avenue; and
the Oak Street Path along the south side of Oak Street between Rouse Avenue and the 5th Avenue
corridor.
2. The City contact for Project related questions shall be:
Craig Woolard
Bozeman Public Works Director
20 E. Olive Street
Bozeman, MT 59771
406-582-2315
CWoolard@BOZEMAN.NET
3. The State Contact for Project related questions shall be:
Dave Holien
Montana Department of Transportation
2701 Prospect Avenue
PO Box 201001
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Helena, MT 59620-1001
406-444-6118
dholien@mt.gov
4. Section 17-1-106. MCA requires any state agency, including MDT that receives non-general funds to
identify and recover its indirect costs. These costs are in addition to direct Project costs. MDT's indirect
cost rate is determined annually as a percentage of the Project's direct costs to cover the Project's share
of MDT's indirect costs as defined by 2 CFR Part 200, Appendix VII. MDT's current indirect cost rate is
10.96%for fiscal year 2018 (July 1, 2017 to June 30, 2018).
For the Project, MDT billings to the City will include a charge for the indirect costs at the current fiscal
year indirect cost rate, which amount will be applied toward the total Project contribution of the City. If
this Project extends across more than one fiscal year, more than one annual rate will be involved, as the
rates may change during the life of the Project.
5. The City will be billed in advance for its local matching funds and associated indirect costs. Separate
billings will be made for the Project's preliminary engineering phase and the subsequent
construction/construction engineering (CN/CE) phases. The billing for the PE phase will be sent within
30 days of this Agreement being signed. The billing for the CN/CE phases will be sent no more than
sixty (60) days prior to the Project bid opening. The billing amount for CN/CE will be updated with the
most current cost estimates at time of billing.
6. If, after initial payment is made for the CN/CE phases, bid opening or contract award by the State is
delayed or postponed by 30 days or more, or canceled for any reason, the State agrees to refund the
City's initial payment within 30 days upon the City's request.
7. The City will submit payment to the State within thirty (30) days of billing. Payments to this Project
will be provided to the State in the form of a check to be credited to the Project. The payment(s)
should be sent to MDT's Administration Division at:
Montana Department of Transportation
Attention: Collections
2701 Prospect Avenue
P.O. Box 201001
Helena, MT 59620-1001
8. The Parties understand that it is possible that the estimated cost of the Project may be exceeded
once the Project has begun. For the PE and CE phases, the State agrees to cover cost overruns using TA
funds provided the City agrees to pay the 13.42% local matching share and associated indirect costs for
the overruns. For the CN phase, the State agrees to award the Project using TA funds provided the
lowest responsive bid does not exceed the allowable overrun percentage listed in Table 2. The City
agrees to pay the requisite 13.42% local matching share and associated indirect costs up to the
allowable overrun percentage. The State will contact the City if the lowest responsive bid exceeds the
allowable overrun percentage listed in Table 2 to determine a funding solution agreeable to both
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Parties. If both Parties agree to recommend awarding the contract, MDT will fund the overrun using
TA funds and the City agrees to pay the additional 13.42% local matching funds and the associated
indirect costs for the overruns.
If both Parties don't agree to fund the overrun, the State will recommend the Commission not award
the Project. The State will work with the City to identify scope changes to bring the Project into a
fundable level and re-advertised for letting. If scope changes cannot be agreed to by both Parties, then
the Project may either be re-advertised and both Parties agree to fully fund it in accordance with this
agreement or the Project may be withdrawn and the City agrees to reimburse the State for all TA funds
expended to date.
The State's Project Manager will inform the City's point of contact beforehand, and as early as possible,
of anything that appears will result in a cost increase, and will discuss the need for any possible
additional costs, alternative designs, or a reduction in the Project's scope with the City and will
consider the City's comments and concerns for that additional cost or alteration in scope or design.
None of this will prevent, delay, or excuse the City from paying for any additional costs deemed
necessary by State.
9. If payment is not made within that thirty (30) day period, interest on the unpaid amount will accrue
at the rate of 10% per year, and continue to accrue until paid in full. If the City is billed for additional
funds, MDT will not participate in any future funding agreement with the City until full payment,
including interest, is received from the City.
10. Upon completion of the Project by the State and its contractor, the City, at its sole expense, agrees
that it will service, maintain, repair and pay the cost of operating the Project described in this
agreement. The City agrees that it is responsible to service, maintain, repair and operate the Project to
ensure that it does not negatively impact the operation of the sidewalk and shared-use path or the
safety of the traveling public. In the event that all or part of the Project becomes unsafe for use, the
City agrees to restrict access to the affected area until the condition has been repaired.
If the City fails to service, maintain, repair and pay the cost of operating this Project as described in this
agreement, the State, in its sole discretion, may service, maintain, repair and operate the Project and
bill the City for such service, maintenance and operation, and the City agrees to pay the State its costs.
Service, maintenance, repair and operation costs are subject to indirect cost recovery as per Section
17-1-106. MCA.
For the purposes of this agreement, "maintenance of a shared-use path" is defined as: grinding or
milling down path displacements; surface patching; crack sealing; sweeping; cleaning; washing;
replacing small portions of damaged path; removal of snow and ice; repair of chipped, fractured, or
broken surface from any cause including but not limited to frost heaving, landscaping, tree roots, or
permitted encroachments; removal of debris and other obstructions or impediments to safe
pedestrian travel; and any and all other normally accepted maintenance practices.
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11. Storm Water Management— If the project is anticipated to disturb one acre or more, then the
following applies.
(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 the City's 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 City agrees to pay annual fees associated with permit coverage until termination.
(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.
12. The City agrees that it will defend, protect, indemnify, and hold the State, 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 the State under this
Agreement.
The State agrees that it will 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 State's employees or third parties on
account of damage to property, bodily or personal injury, or death arising out of any services
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performed, act or omission that in any way results from the acts or omissions of the State, or their
agents, or subcontractors, under this Agreement, except the negligence of the City under this
Agreement.
13. 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.
14. Choice of Law and Venue— In the event of litigation concerning this Agreement, venue will only be
in District Court of the First Judicial District of the State of Montana in and for the County of Lewis and
Clark. This Agreement will be interpreted according to Montana law.
15. 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 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.
16. Agreement Modification—Any change to this Agreement will only be by written agreement
between the Parties.
17. Severability and Integration — If any single part or parts of this Agreement are determined to be
void, the remaining parts will remain valid and operative. This Agreement, as written, expresses the
total, final and only agreement of the parties relevant to its subject matter. No provision, expressed or
implied, arising from any prior oral or written request, bid, inquiry, negotiation, contract, or any other
form of communications shall be a provision of this Agreement unless specifically provided within the
written terms herein.
18. Termination —The Parties may mutually terminate this Agreement in writing at any time prior to
the award of the construction contract. MDT, at its sole discretion, may terminate or reduce the scope
of this Agreement if available funding is reduced for any reason. Should the City decide to terminate
the Project, the City will be responsible for the reimbursement of the TA funds expended to date. MDT
may terminate this Agreement in whole or in part at any time if the City fails to perform the
Agreement as set forth. If MDT terminates this Agreement due to the City's failure to perform, the City
will be responsible for the reimbursement of the TA funds expended to date.
19. Compliance with Laws - The City shall, at all times during the performance of its obligations of this
Contract strictly adhere to all applicable local, state and federal laws and regulations, including but not
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limited to: Title VI of the Civil Rights Act of 1964, Section 504 of the Rehabilitation Act of 1972, the
Education Amendments of 1972,the Age Discrimination Act of 1975,the Americans With Disabilities Act,
including Title II, Subtitle A, 24 U.S.C. Sec. 12101, et seq., all rules and regulations applicable to these
laws prohibiting discrimination based upon actual or perceived race, color, national origin, ancestry,
religion, creed, sex, age, marital or familial status, physical or mental disability, sexual orientation,
gender identity or expression and handicap and with Exhibit A, attached hereto and incorporated by
reference.
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 regulations, as set forth in Exhibit 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 by the United States Department of Justice 2010 ADA Standards for Accessible 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.
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TABLE 1
TRANSPORTATION ALTERNATIVESS PROJECT COST ESTIMATE
UPN 9452 PATH PAVEMENT PRESERVATION-BOZ
MARCH 2O18
Project Phases Total Project TA Funds 86.58% City Funds 13.42% Other Funds
Cost
Preliminary Engineering
(PE) $ 19,628 $ 16,994 $2,634 $-0-
Utility Relocations(IC) $-0- $-0- $-0- $-0-
Right-of-Way(ROW) $-0- $-0- $-0- $-0-
Construction(CN) $ 130,856 $ 113,295 $ 17,561 $-0-
Construction
Engineering(CE) $ 15,702 $ 13,595 $2,107 $-0-
Other(OT) $-0- $-0- $-0- $-0-
Subtotal $166,186 $143,884 $22,302 $-0-
IDC $18,214 $15,770 $2,444 $-0-
Grand Total $184,400 $159,654 $24,746 $-0-
The above costs are estimates. Additional project costs will be covered in the same manner as above. The IDC
rate for FY 2018(July 1, 2016-June 30, 2018)is 10.96%.
TABLE 2
MDT GUIDELINES FOR AWARDING CONSTRUCTION CONTRACTS
(Used to determine allowable overrun cost participation based on construction bid award amount)
LOWEST RESPONSIVE BID ALLOWABLE OVERRUN%
UNDER$50,000 30%
$50,000-$200,000 25%
$200,000-$500,000 20%
$500,000-$2,000,000 15%
OVER$2,000,000 10%
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IN WITNESS WHEREOF, the Department's authorized representative has signed on behalf of the State
of Montana, and the Mayor of the City of Bozeman has signed and affixed hereto the seal of the City.
STATE OF MONTANA, DEPARTMENT OF TRANSPORTATION
BY s �// 7 , MIT
,AT Dept. of Transportation
APPROVED FOR LEGAL CONTENT
MDT Legal Counsel
APPROVED FOR CIVIL RIGHTS
jilt
1
CITY OF BOZEMAN
MAYOR
By
I, l�Db�Y� , Bozeman City Clerk, hereby certify that this agreement was
r0g dopted by the City Council at a meeting held on the �`` day
of JtAyc- , 20 , and that the Council authorized the Mayor to sign this agreement
on behalf of the City.
B 02 ��
[Officit'4a �r ••.yam.
U r �,
�`4TtN CO•�10
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EXHIBIT A
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, regarding 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).
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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.shtmi
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:
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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. §§ 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);
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- 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.
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