HomeMy WebLinkAbout18- Memorandum of Agreement - Montana Department of Transportation (MDT) - East Main Street N-50 Sidewalk, Landscaping, and Irrigation Equipment CITYISTATE MEMORANDUM OF AGREEMENT
East Main Street/N-50
Sidewalk, Landscaping & Irrigation Equipment
BOZEMAN MONTANA
March 2018
This Memorandum of Agreement (Agreement) is made and entered into by and between
the City of Bozeman ("the City"), PO Box 1230, Bozeman, MT 59771 and the Montana
Department of Transportation ("MDT"), PO Box 201001, Helena MT 59620-1001 together
referred to as "the Parties."
The Purpose of this Agreement is to set forth the responsibilities and duties of the City and
MDT associated with the placement of sidewalk, landscaping and irrigation equipment
within the East Main Street right-of-way, per the approved plans (Attachment B) in the City
of Bozeman. This Agreement sets forth terms the City must meet for MDT to provide the
City an encroachment permit to construct and maintain the sidewalk, landscaping and
irrigation equipment on East Main Street. Any encroachment permit granted to the City by
this Agreement is explicitly subject and subordinate to the rights and title of MDT and the
State of Montana.
WHEREAS, MDT is responsible for planning, designing, constructing and maintaining State
Highways and roadway associated transportation facilities, including associated pull-offs,
parking areas, and rest areas for the use and benefit of the traveling public, in a safe and
efficient manner in accordance with Title 23 United States Code (U.S.C) and Title 60
Montana Code Annotated (MCA) and maintains and has jurisdiction for East Main Street
(N-50); and
WHEREAS, the "Project" includes installation of sidewalk, landscaping and irrigation
equipment within East Main Street right-of-way, per the approved plans (Attachment B);
and
WHEREAS,This Agreement must be fully executed before initiation of construction of the
Project within public right-of-way; and
NOW,THEREFORE, in consideration of the following mutual promises the Parties agree as
follows:
ARTICLE I.
1. Upon submission of a completed application by the City for an encroachment permit
that is acceptable to MDT and the City's agreement to the following terms and
conditions, MDT will issue an encroachment permit to the City for the placement of
sidewalk,landscaping and irrigation equipment within the East Main Street right-of-
way per the approved plans in Attachment B,which is incorporated herein by
reference.
Page 1 1
2. The City agrees any maintenance that requires lane closure or equipment use within
the East Main Street right-of-way must be reviewed and approved by MDT Bozeman
Area Maintenance staff prior to initiation of the maintenance.
3. The City, at the City's sole expense, agrees to maintain, or cause to be maintained,the
Project sidewalk,landscaping and irrigation equipment in satisfactory condition,
including but not limited to, snow removal,trimming, sidewalk replacement and
irrigation equipment repair within the public right-of-way. Any damage must be
repaired within 30 calendar days of written notification being sent to the City.
4. The City agrees that no fixture, building, structure, or other permanent installation will
be constructed or placed within the public right-of-way without prior written approval
from MDT.
S. The City agrees to forward any request for an encroachment permit within the East
Main Street right-of-way to MDT for its review and approval.
6. The City shall complete the necessary environmental processes for modification to the
state highways and roadways and demonstrate that all, if any, environmental issues
associated with the proposed project have been identified and mitigated. The City
agrees it will prepare and file any required environmental documents and apply for and
obtain any permits required by other governmental agencies at no expense to MDT
prior to maintenance taking place within MDT right-of-way.
7. The City agrees to be responsible for any and all damages to MDT's facilities caused by
the City,the City's staff or contractors, or resulting from the City's operations. The City
must repair any and all damages, at its sole expense, after notification of damage by
MDT and approval by MDT of the repair work needed,the method of repair, and the
schedule of repair.
8. If the City determines it is no longer able to complete the maintenance of the
landscaping, sidewalks or other amenities as required by this Agreement,the
improvements shall become the property of MDT,without reimbursement. MDT may
seek compensation from the City for the cost of removal of the landscaping, sidewalks
or other amenities.
9. The City does not have authority to permit encroachments within MDT's right-of-way.
Any encroachments within MDT right-of-way are solely within the discretion of MDT.
10. If the City fails to perform its maintenance obligations, MDT may complete the required
maintenance and the City shall be required to compensate MDT for its performance of
said maintenance.
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11. MDT may complete any maintenance required due to a public emergency without prior
notice to the City and the City shall be required to compensate MDT for its performance
of said maintenance.
ARTICLE II. GENERAL TERMS AND CONDITIONS
1. Term - This Agreement shall continue in effect until the Agreement is terminated.
2. Termination- This Agreement may be terminated by MDT if the City has violated or
breached any term, condition, or article of this Agreement and the City has failed to
correct the same within the number calendar days specified in Article I or 30 days,
whichever is less, of receiving notice in writing addressed to the City, at the address
shown above, from MDT of such violation or breach of any term, condition, or Article of
this Agreement. If this Agreement is terminated,the improvements become the
property of MDT,without reimbursement. MDT will maintain the property as it sees fit,
and may remove landscaping and other amenities without City approval. MDT may
seek compensation for removal of landscaping or other amenities from the City.
3. Hold Harmless &Indemnification-
The City shall protect, defend, indemnify, and hold MDT, its elected and appointed
officials, agents, and employees,while acting within their duties as such,harmless from
and against all claims, liabilities, demands, causes of action, and judgements (include
the cost of defense and reasonable attorney fees) arising in favor of or asserted by the
City's employees or third parties on account of damage to property, bodily or personal
injury, or death arising out of any services performed, act or omission that in any way
results from the acts or omissions of the City, or their agents, or subcontractors, under
this Agreement, except the negligence of MDT under this Agreement.
4. Insurance - The City is a member of the Montana Municipal Interlocal Authority's
(MMIA) Liability Program. The city will maintain for the duration of the Agreement, at
its own cost and expense, liability coverage against claims for injuries to persons or
damages to property which may arise from, or in connection with, any act or omission
by the City and its agents, employees, representative, assigns or subcontractors during
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.
Page 13
a).Workers' Compensation Insurance: The City provides its employees workers
compensation coverage through MMIA. The City must maintain workers' compensation
insurance and require its contractor and its contractor's subcontractors to carry their
own workers' compensation coverage while performing work within MDT right-of-way
in accordance with §39-71-410/405, Montana Code Annotated. Neither the contractor
nor its employees are employees of MDT. This insurance/exemption must be valid for
the entire Agreement period.
5. Public Safety-
It is agreed, if any repairs to the Project must be done to prevent a public hazard, the
City will immediately protect the area from public access, contact MDT Butte District
Maintenance, and take corrective action to repair the hazard.
6. 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 Article I which necessitates action on MDT's part
concerning the maintenance or repair of the Project, 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 2018 (July 1, 2017
to June 30, 2018). If the work occurs or extends into fiscal year 2018 or beyond the IDC
rate will be charged at the rate agreed to by MDT and the Federal Highway
Administration (FHWA).
i. Invoice will be sent to:
City of Bozeman
Attn: Director of Public Works
PO Box 1230
Bozeman, MT 59771
ii. Payments shall be made to:
Montana Department of Transportation
Attention: Collections
2701 Prospect Avenue
PO Box 201001
Helena, MT 59620-1001
Page 4
7. Choice of Law and Venue -This Agreement shall be governed by the laws of Montana.
The parties agree that any litigation concerning this Agreement must be brought in the
First Judicial District Court, in and for the County of Lewis and Clark, State of Montana,
and each party shall pay its own costs and attorney fees.
8. Binding Effect-- The benefits and obligations set forth in this Agreement shall be
binding upon, and inure to the benefit of,their respective successors, administrators
and assigns of the Parties.
9. Relationship of Parties -- Nothing contained in this Agreement shall be deemed or
construed (either by the parties hereto or by any third party) to create the relationship
of principal and agent or create any partnership joint venture or other association
between the Parties.
10.Non-Discrimination- The City will require that during the performance of any work
arising out of this Agreement the City, for itself, assignees, and successors shall comply
with all applicable non-discrimination regulation set forth in Attachment"A" attached
hereto and made part of this Agreement.
Additionally, MDT requires that any construction resulting from this Agreement must
include appropriate pedestrian facilities that meet or exceed current MDT standards for
accessibility as set forth 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.
11.Audit-The City grants to the Legislative Auditor and the Legislative Fiscal Analysts the
right,without prior notice and during normal business hours,to audit, at their own
costs and expense, all records, reports, and other documents, the City maintains in
connection with this Agreement.
12. Revocation--This Agreement is revocable by MDT in the event that the Project facilities
within the right-of-way cease to be used by the City for a period of one year or is
otherwise abandoned.
13.Utilities --This Agreement is subject to the right of any private or public utility now
lawfully occupying the right-of-way to continue to operate and maintain utility facilities
thereupon. Copies of existing utility permits may be obtained from the MDT Missoula
Utility Agent.
14.Amendment and Modification-- This Agreement may be modified or amended only by
written Addendum signed by the parties. In addition to the terms and conditions
contained herein,the provisions of any Addendum may be incorporated and made a
part hereof by this reference in the terms of the amendment so provided. In the event
of any conflict between the terms and conditions hereof and the provisions of any
Page 15
Addendum,the provision of the Addendum shall control, unless the provisions thereof
are prohibited by law.
15. Counterpart Execution -This Agreement may be executed in two or more counterparts,
each of which shall be deemed an original but all of which together shall constitute one
and the same Agreement.The counterparts of this Agreement may be executed and
delivered by facsimile or other electronic signature by any of the parties to any other
party and the receiving party may rely on the receipt of such document so executed and
delivered by facsimile or other electronic means as if the original had been received.
Page 16
IN WITNESS WHEREOF,the Department's authorized representative has hereunto signed
on behalf of the State of Montana, and the City Manager of the City of Bozeman, on behalf of
the City, has signed and affixed hereto the seal of the City.
STATE OF MONTANA, DEPARTMENT OF TRANSPORTATION
BY �, '^'� 2018
Mon Department of Transportation
> � ti, qq
Approved for Legal Content
�,) - (,� p� D� 18
Approved for Civil Rights
CITY OF BOZEMAN
By 2018
City of Bozeman
Page 17
Rev. 01/2018
MDT NONDISCRIMINATION
AND
DISABILITY ACCOMMODATION NOTICE
Montana Department of Transportation ("MDT") is committed to conducting all of its business in an
environment free from discrimination, harassment, and retaliation. In accordance with State and
Federal law MDT prohibits any and all discrimination and protections are all inclusive (hereafter
"protected classes") by its employees or anyone with whom MDT does business:
Federal protected classes State protected classes
Race, color, national origin, Race, color, national origin, parental/marital status,
sex, sexual orientation, gender identity, pregnancy, childbirth, or medical conditions
age, disability, & Limited English Proficiency related to pregnancy or childbirth, religion/
creed, social origin or condition, genetic
information, sex, sexual orientation, gender
identification or expression, national origin,
ancestry, age, disability mental or physical, political
or religious affiliations or ideas, military service or
veteran status
For the duration of this contract/agreement, the PARTY agrees as follows:
(1) Compliance with Regulations: The PARTY(hereinafter includes consultant)will comply with all
Acts and Regulations of the United States and the State of Montana relative to Non-
Discrimination in Federally and State-assisted programs of the U.S. Department of
Transportation and the State of Montana, as they may be amended from time to time, which are
herein incorporated by reference and made a part of this contract.
(2) Non-discrimination:
a. The PARTY, with regard to the work performed by it during the contract, will not
discriminate, directly or indirectly, on the grounds of any of the protected classes in the
selection and retention of subcontractors, including procurements of materials and
leases of equipment, employment, and all other activities being performed under this
contract/agreement.
b. PARTY will provide notice to its employees and the members of the public that it serves
that will include the following:
i. Statement that PARTY does not discriminate on the grounds of any protected
classes.
ii. Statement that PARTY will provide employees and members of the public that it
serves with reasonable accommodations for any known disability, upon request,
pursuant to the Americans with Disabilities Act as Amended (ADA).
iii. Contact information for PARTY's representative tasked with handling non-
discrimination complaints and providing reasonable accommodations under the
ADA.
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Rev. 01/2018
iv. Information on how to request information in alternative accessible formats.
c. In accordance with Mont. Code Ann. § 49-3-207, PARTY will include a provision, in all of
its hiring/subcontracting notices, that all hiring/subcontracting will be on the basis of
merit and qualifications and that PARTY does not discriminate on the grounds of any
protected class.
(3) Participation by Disadvantaged Business Enterprises (DBEs):
a. If the PARTY receives federal financial assistance as part of this contract/agreement, the
PARTY will make all reasonable efforts to utilize DBE firms certified by MDT for its
subcontracting services. The list of all currently certified DBE firms is located on the
MDT website at mdt.mt.gov/business/contracting/civil/dbe.shtml
b. By signing this agreement the PARTY assures that:
The contractor, sub recipient or subcontractor shall not discriminate on the
basis of race, color, national origin, or sex in the performance of this contract.
The contractor shall carry out applicable requirements of 49 CFR part 26 in the
award and administration of DOT-assisted contracts. Failure by the contractor
to carry out these requirements is a material breach of this contract, which may
result in the termination of this contract or such other remedy as the recipient
deems appropriate.
c. PARTY must include the above assurance in each contract/agreement the PARTY
enters.
(4) Solicitation for Subcontracts, Including Procurement of Materials and Equipment: In all
solicitations, either by competitive bidding, or negotiation, made by the PARTY for work to be
performed under a subcontract, including procurements of materials, or leases of equipment,
each potential subcontractor or supplier will be notified by the PARTY of the PARTY's obligation
under this contract/agreement and all Acts and Regulations of the United States and the State of
Montana related to Non-Discrimination.
(5) Information and Reports: The PARTY will provide all information and reports required by the
Acts, Regulations, and directives issued pursuant thereto and will permit access to its books,
records, accounts, other sources of information and its facilities as may be determined by MDT
or relevant US DOT Administration to be pertinent to ascertain compliance with such Acts,
Regulations, and instructions. Where any information required of a contractor is in the exclusive
possession of another who fails or refuses to furnish the information, the PARTY will so certify to
MDT or relevant US DOT Administration, as appropriate, and will set forth what efforts it has
made to obtain the information.
(6) Sanctions for Noncompliance: In the event of a PARTY's noncompliance with the Non-
discrimination provisions of this contract/agreement, MDT will impose such sanctions as it or the
relevant US DOT Administration may determine to be appropriate, including, but not limited to:
a. Withholding payments to the PARTY under the contract/agreement until the PARTY
complies; and/or
b. Cancelling, terminating, or suspending the contract/agreement, in whole or in part.
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R
Rev.01/2018
(7) Pertinent Non-Discrimination Authorities:
During the performance of this contract/agreement, the PARTY, for itself, its assignees, and
successor in interest, agrees to comply with the following non-discrimination statues and
authorities; including but not limited to:
Federal
- Title VI of the Civil Rights Act of 1964 (42 U.S.C. § 2000d et seq., 78 stat. 252), (prohibits
discrimination on the basis of race, color, national origin); and 49 CFR Part 21;
- The Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, (42
U.S.C. § 4601), (prohibits unfair treatment of persons displaced or whose property has been
acquired because of Federal or Federal-aid programs and projects);
- Federal-Aid Highway Act of 1973, (23 U.S.C. § 324 et seq.), (prohibits discrimination on the
basis of sex);
- Section 504 of the Rehabilitation Act of 1973, (29 U.S.C. § 794 et seq.), as amended, (prohibits
discrimination on the basis of disability); and 49 CFR Part 27;
- The Age Discrimination Act of 1975, as amended, (42 U.S.C. § 6101 et seq.), (prohibits
discrimination on the basis of age);
- Airport and Airways Improvement Act of 1982, (49 U.S.C. § 471, Section 47123), as amended,
(prohibits discrimination based on race, creed, color, national origin, or sex);
- The Civil Rights Restoration Act of 1987, (PL 100-209), (broadened the scope, coverage, and
applicability of Title VI of the Civil Rights Act of 1964, The Age Discrimination Act of 1975, and
Section 504 of the Rehabilitation Act of 1973, by expanding the definition of the terms
"programs or activities" to include all of the programs or activities of the Federal-aid recipients,
sub-recipients, and contractors, whether such programs or activities are Federally funded or
not);
- Titles II and III of the Americans with Disabilities Act, which prohibits discrimination on the basis
of disability in the operation of public entities, public and private transportation systems, places
of public accommodation, and certain testing entities (42 U.S.C. §§ 12131-12189) as
implemented by Department of Transportation regulations at 49 CFR parts 37 and 38;
- The Federal Aviation Administration's Non-Discrimination statute (49 U.S.C. § 47123) (prohibits
discrimination on the basis of race, color, national origin, and sex);
- Executive Order 12898, Federal Actions to Address Environmental Justice in Minority
Populations and Low-Income Populations, which prevents discrimination against minority
populations by discouraging programs, policies, and activities with disproportionately high and
adverse human health or environmental effects on minority and low-income populations;
Page 3 of 4
Rev. 01/2018
Executive Order 13166, Improving Access to Services for Persons with Limited English
Proficiency, and resulting agency guidance, national origin discrimination includes discrimination
because of Limited English Proficiency(LEP). To ensure compliance with Title VI, you must
take reasonable steps to ensure that LEP persons have meaningful access to your programs
(70 Fed. Reg. at 74087 to 74100);
Title IX of the Education Amendments of 1972, as amended, which prohibits you from
discriminating because of sex in education programs or activities (20 U.S.C. § 1681 et seq.).
Executive Order 13672 prohibits discrimination in the civilian federal workforce on the basis of
gender identity and in hiring by federal contractors on the basis of both sexual orientation and
gender identity.
State
- Mont. Code Ann. § 49-3-205 Governmental services;
- Mont. Code Ann. § 49-3-206 Distribution of governmental funds;
- Mont. Code Ann. § 49-3-207 Nondiscrimination provision in all public contracts.
(8) Incorporation of Provisions: The PARTY will include the provisions of paragraph one through
seven in every subcontract, including procurements of materials and leases of equipment, unless
exempt by the Acts, the Regulations and/or directives issued pursuant thereto. The PARTY will
take action with respect to any subcontract or procurement as MDT or the relevant US DOT
Administration may direct as a means of enforcing such provisions including sanctions for
noncompliance. Provided, that if the PARTY becomes involved in, or is threatened with litigation
by a subcontractor, or supplier because of such direction, the PARTY may request MDT to enter
into any litigation to protect the interests of MDT. In addition, the PARTY may request the United
States to enter into the litigation to protect the interests of the United States.
Page 4 of 4
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