HomeMy WebLinkAbout18- Memorandum of Understanding - Montana Department of Transporation (MDT) - Planning and Construction of Kagy Boulevard, South 19th Avenue to Willson Avenue May 9,2018
MEMORANDUM OF UNDERSTANDING
BETWEEN CITY OF BOZEMAN AND THE MONTANA DEPARTMENT OF
TRANSPORTATION FOR THE PLANNING AND CONSTRUCTION OF
KAGY BOULEVARD—S. 19TH TO WILLSON AVENUE, UPN 8931000
This memorandum of understanding(MOU)by and between CITY of Bozeman(CITY),
and the Montana Department of Transportation (MDT) establishes the roles,
responsibilities and commitments relative to the planning, costs, and administration
responsibilities necessary for the reconstruction of Kagy Boulevard within the Bozeman
Urban Area. This MOU supersedes a previous funding agreement dated February 26,
2015.
WITNESSETH
This project is located in the city of Bozeman on Kagy Boulevard (U-1212) from the
junction with S. 19th Ave (U-1201)to the junction with Willson Ave. (U-1209). The
proposed scope of work includes widening Kagy Boulevard from the intersection of S.
19th to Willson to a 4 lane urban arterial. This includes two travel lanes in each direction,
bike lanes on each side, curb and gutter, boulevard, sidewalks,roundabouts at the
intersections of 1 Ith, 7th, and Willson Ave, and pedestrian tunnels located at the
intersections of I Ith and 7th
WHEREAS,the MDT is responsible for assuring that the planning, design, approvals and
environmental clearances, construction and maintenance of state and federally-designated
highway system facilities provide for the benefit of the traveling public in a safe an
efficient manner in accordance with Title 23 United States Code (U. S. C.) and related
federal regulation and guidance and Title 60,Montana Code Annotated(MCA); and
WHEREAS,the CITY agrees to be responsible for items identified in this MOU and be
responsible for preparing the financial package for the PROJECT; and
WHEREAS,the CITY agrees and understands that the PROJECT will not advance
past the Preliminary Engineering (PE) phase until a funding package for all
improvements, including contingencies and overruns,is in place to MDT's
satisfaction; and
WHEREAS, the CITY agrees this PROJECT is and will remain the CITY's Urban
Highway Program funding priority until constructed; and
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WHEREAS,the 2017 Consultant Services cost estimate of the PROJECT is $15,051,5001
including indirect costs;
WHEREAS,it is mutually agreed upon that a cooperative delineation and identification of
duties and responsibilities of the parties is essential to the overall development of this
PROJECT.
NOW THEREFORE, the signatory parties set forth below the fundamental duties and
responsibilities necessary for this proposed PROJECT.
I. PROJECT DEVELOPMENT
A. CITY:
1. Will be responsible for defining the final scope of the PROJECT and
obtaining approval from local officials.
B. MDT:
1. Will develop the PROJECT including: engineering analysis,public
involvement, design, environmental documentation, clearances,plans
preparation, acquisition of all appropriate permits and agreements, and the
provision of other services required to complete the preconstruction phase.
II. ENVIRONMENTAL REVIEW
A. MDT:
1. Will be responsible for the development of documents necessary for compliance
with the National Environmental Policy Act(NEPA),23 CFR 771, Section 106
of the National Historic Preservation Act(NHPA),Section 4(f)of the DOT Act,
and the Montana Environmental Policy Act (MEPA), in connection with the
actions contemplated in this agreement. MDT will coordinate with FHWA for
their approval of the NEPA document as necessary.
B. All Parties:
1. Understand that the decisions made by the MDT and FHWA pursuant hereto
and the execution of this agreement does not constitute the irretrievable
commitment of resources by the MDT or the CITY until all necessary steps
are taken with regard to any particular decision to comply with NEPA/MEPA
and other applicable state and federal laws.
Cost estimate includes all phases and IDC
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III. FUNDING
A. CITY:
1. Is responsible for securing the remainder of the necessary funding for this
PROJECT;
2. Will provide any necessary local or non-federal match funds and associated
indirect costs to MDT within thirty (30) days of billing. MDT will not submit
programming requests to FHWA for individual project phases until the required
matching funds and funds for costs in excess of available federal funds, if any,
have been transferred to MDT.
3. Will transfer funding for non-federal/non-state provided costs for the
PROJECT within thirty (30) days of MDT billing.
4. Agrees to and acknowledges its responsibility for all costs associated with the
PROJECT in excess of available STPU funds.
5. Is responsible for 100% of non-federal aid eligible costs and payback of state
and federal funds expended on the PROJECT if required.
6. Agrees, if the CITY terminates PROJECT development at any time, it will
reimburse MDT for any and all costs incurred by MDT, including any required
payback of Federal funds already expended on the PROJECT,up to the date of
the stoppage.
7. Will develop a comprehensive financial plan, for MDT review and approval,
for the PROJECT. The financial plan must address sources of funds in the
event of unanticipated cost overruns. This financial plan must be approved
before MDT will request programming for the construction phase of the
PROJECT. This financial plan must demonstrate that all components of the
PROJECT, will be completed and operationally consistent with the
recommendations of the environmental documents described in the
Environmental section of this agreement.
B. MDT:
1. Consistent with Transportation Commission approval, will allocate available
CITY and STPU funds for all phases of this PROJECT.
2. Will allow CITY to use local resources to reduce the overall funding obligation
to construct the PROJECT,including but not limited to all private contributions;
in-kind private contributions; cash or in-kind contributions from local
government entities such the CITY/CITY Road Department. In-kind
contributions can be used to reduce the overall project costs, not to match
federal funds.
C. All Parties:
I. It is understood and agreed between the parties that: Section 17-1-106, MCA,
requires any state agency, including MDT that receives non-general funds to
identify and recover its indirect costs. These costs are in addition to direct
PROJECT costs. MDT's indirect cost rate is determined annually as a
percentage of the PROJECT's direct costs to cover the PROJECT's share of
MDT's indirect costs as defined by 2 CFR Part 200, Appendix VII. MDT's
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current indirect cost rate is 10.96%for state fiscal year 2018 (July 1, 2017 to
June 30, 2018).
For this PROJECT, years beyond state fiscal year 2017 MDT billings will
include an indirect cost rate charge to the CITY at the rate established for the
year of expenditure,which amount will be applied toward the total PROJECT
contribution of the CITY. [Note: 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.]
2. Agree and understand that the PROJECT will not advance past the Preliminary
Engineering(PE)phase until a funding package for all improvements,including
contingencies and overruns, is in place to MDT's satisfaction.
3. Current project cost estimates by phase, including IDC:
PE $ 2,772,700
RW2 $ 194,200
IC3 $ 103,600
CN/CE $11,981,000
$15,051,5004
4. Currently identified funding sources, subject to obligation limitations and
indirect cost recovery rates, for this PROJECT include:
CITY funding5: $ 3,000,000
STPU:
FFY18 Accrued Balance $ 4,270,800
Future year STPU allocations (FFY19-22)' $ 3,840,000
STPU Allowable Borrow $ 3,490,700
Total Secured Funding $15,051,500
5. PROJECT estimates will be updated at PROJECT milestones or as more
refined estimates become available until PROJECT closeout. All Parties and
their consultants will meet during the consultant contract scoping process and
during each phase to exchange PROJECT information, ensure PROJECT and
funding are tracking together, and identify any outstanding issues. All Parties
must concur on the PROJECT estimates before they can be used within this
z RW phase estimate covers permitting/survey activities and does not include RW acquisition
a IC phase estimate covers permitting/survey activities and does not include utility moves
a Includes IDC
s Funds are anticipated to be applied to the project$1 million to the PE phase,$2 million to the CN phase
6 Includes obligated and unobligated funds
At current cost estimates and funding availability,the CITY's STPU balance allows for a 2022 letting
year
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agreement as a basis for financial responsibility/participation in this
PROJECT.
IV. PROJECT DESIGN PHASE
A. MDT:
1. Will develop constructible design plans, in accordance with MDT design
standards and the environmental process, for the PROJECT.
2. Will provide the CITY a design phase cost estimate including indirect costs to
cover MDT administrative expenses and request for any non-federal match
funds.
B. All Parties:
1. Agree that the PROJECT will not advance past the PE phase until a funding
package for all improvements, including contingencies and overruns, is in
place to MDT's satisfaction.
V. RIGHT-OF-WAY ACQUISITION
A. CITY:
1. Provide MDT certification that all right of way donated or purchased for this
PROJECT by the CITY or other participating parties was acquired in
accordance with all applicable federal or state laws and regulations required
for federally-funded projects,which may include the provisions of 49 CFR
Part 24 (Uniform Relocation Assistance and Real Property Acquisitions
Regulations For Federally Assisted Programs),that there was no relocation of
individuals or businesses required, and that all structures within the new right
of way have been demolished or removed. This certification is required prior
to MDT's requesting Federal authorization of the construction phase.
2. Acknowledges that, according to federal regulations, if right-of-way is
donated to a PROJECT,the value of the right-of-way can only be credited
after notification from MDT that FHWA authorization to proceed with right-
of-way acquisition has been issued and is subject to the following provisions:
a. Any right-of-way acquired or donated for the PROJECT must be procured
in accordance with 49 CFR Part 24, Uniform Relocation Assistance and
Real Property Acquisition Regulations for Federally Assisted Programs,
and the guidelines and procedures contained in MDT's Right of Way
Manual. Per MDT policy 8-03-002, donated right of way for the
PROEJCT as in in-kind contribution can be used to reduce the overall
project costs,not to match federal funds. Donated right of way will be
valued by the MDT as consistent with state and federal requirements.
b. If donated right of way becomes part of the overall PROJECT funding
package, a separate agreement will cover transfer of ownership, quality of
deed and valuation. Any issues will be resolved based on MDT
requirements including that valuation, donation, and/or acquisition will
precede construction advertisement of the PROJECT.
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B. MDT:
1. Will request federal authorization to proceed with right-of-way acquisitions.
2. Will follow standard procedures to acquire right-of-way for this Project in
accordance with 49 CFR Part 24, Uniform Relocation Assistance and Real
Property Acquisition Regulation for Federally Assisted Programs, and the
guidelines and procedures contained in MDT's Right of Way Manual.
3. Is responsible for establishing the final determination and approval of appraised
values for donated right of way.
4. Acknowledges that any right of way donated toward the PROJECT will reduce
the overall project costs and be considered as participation in the PROJECT
funding package, subject to limitations of federal/state match requirements,the
right of way requirements of the PROJECT, and subject to FHWA approval.
C. All Parties:
1. Valuation of CITY's right of way acquired for the PROJECT will be determined
by a qualified appraiser selected by CITY and approved by MDT.
VI. UTILITIES
A. MDT:
1. Will inform the utility companies responsible for water, storm and sanitary
sewer,power, gas, and phone of the future plans for the area and encourage
the utility companies to make provision for any utility additions, adjustments,
or replacement anticipated within 20 years after the estimated completion of
the Project.
2. Will prepare necessary utility agreements for facilities that must be moved
because of conflicts with the proposed Project.
3. Will follow standard procedures for utility relocations and will coordinate
with the CITY.
VII. CONTRACT AWARD ADMINISTRATION
A. CITY:
1. Will submit payment for its portion of PROJECT cost based on the MDT
engineer's estimate for the construction and construction engineering costs to
the MDT within thirty (30) days of billing.
2. If the federal government requires a reimbursement or return of any federal
funds because a project doesn't advance due to CITY's failure to make any
scheduled payment, the CITY agrees that it will reimburse MDT for those
federal funds within thirty (30) days of billing.
3. If at bid opening the CITY concurs in cost increases greater than 10% of
MDT's estimate, the CITY will pay the increased costs within thirty (30) days
of MDT's billing.
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B. MDT:
1. Will provide a detailed breakdown of all estimated PROJECT costs and bill the
CITY accordingly for PE upon this executed MOU and remaining local
contribution necessary to complete the funding package will be billed in
advance for construction of the PROJECT no more than (60) days before bid
opening.
2. Once a complete funding package is in place, will bid, award and administer
the construction contract for the PROJECT in accordance with the normal MDT
procedures, including obtaining concurrence of award from FHWA.
3. Will not let the PROJECT contract without the CITY's concurrence if the bid
price exceeds the available funds or exceeds the engineers estimate by more
than 10%. If the CITY does not concur the PROJECT will not be awarded,
since the CITY is also responsible for the cost increase. If the CITY does
concur, the PROJECT will be awarded and the CITY will be billed for the
amount exceeding the initial payment.
C. All Parties:
1. Understand that it is possible that the PROJECT estimate may be exceeded once
construction is begun,and any change orders,increases,or unforeseen expenses
will be borne by the CITY. MDT will inform the CITY beforehand, and as
early as possible, of anything that appears will result in a cost increase,and will
discuss the need for any possible change order with the CITY. But it is agreed
that the CITY does not have the ability to veto or delay, or refuse to pay for,
any change orders deemed necessary by MDT.
2. The CITY's portion of the cost of any change order will be billed as early as it
can be readily determined, and will be due and payable by the CITY within
thirty(30) days of the statement.
3. Within six (6) months after the PROJECT has been finally accepted with the
final costs submitted,the MDT will submit a final statement to the CITY. The
final statement will be in the form of an invoice and provide details of any
expenses that may be identified as "miscellaneous", billing the CITY for cost
overruns, or it will be a check, for overpayment by the CITY. The CITY will
submit payment to the MDT within thirty (30) days of billing. 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 agreements with the CITY until full payment, including interest, is
received from the CITY.
4. Payments to this PROJECT will be coordinated through the MDT's
Administration Division, and will be provided to MDT staff in the form of a
check to be deposited and credited to this PROJECT. Please make the check
payable to the "Montana Department of Transportation"and send your
payment to:
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Montana Department of Transportation
Attention: Collections
P.O. Box 201001
Helena, MT 59620-1001
The contact for billing and accounting questions for the MDT will be:
Deann Willcut
Special Project Accountant
P.O. Box 201001
Helena,MT 59620-1001
The contact for billing and accounting questions for the CITY will be:
Anna Rosenberry
Finance Director—Bozeman
121 N. Rouse
Bozeman, MT 59771
VIII. PROJECT CONSTRUCTION PHASE
A. CITY:
1. Acknowledges the funding plan must demonstrate that all components of the
PROJECT will be completed.
2. Acknowledges that FHWA construction phase approval is contingent on an
acceptable and comprehensive funding plan for the completed PROJECT.
3. Acknowledges that the value of quantifiable materials and other MDT and
FHWA approved in-kind contributions can also be credited to reduce overall
project costs if all specifications are met and the transfer of ownership is
accomplished after the PROJECT is programmed. No other contributions or
services will be credited.
B. MDT:
1. Will request programming of STPU funds and program local funds necessary
to complete the funding package for the construction phase of the proposed
PROJECT.
C. All Parties:
1. Agree and understand that MDT's funding contribution is contingent on the
conditions described herein and therefore the PROJECT will not be
programmed for the construction phase until:
a. a funding package for the PROJECT through construction, including
contingencies and overruns, is in place to MDT's satisfaction; and
b. all approvals, clearances and permits are obtained.
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IX. SIDEWALK MAINTENANCE
A. All Parties:
1. 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 and bike lane(s)bordering the Project,
including the maintenance of any shared use path facilities and pedestrian
tunnels adjacent to the Project. Specifically,the City will maintain or cause to
be maintained pedestrian tunnels,the sidewalks, bike lanes, and shared use
paths adjacent to both sides of Kagy Boulevard from S. 19t"to Willson Ave.
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.
a. For purposes of this agreement, "Maintenance"means: removal of
and/or repair of any obstacles or impediment to the safe and efficient
use of the sidewalk, bike lane, shared use path, and pedestrian tunnel
by pedestrians,bicyclists, and other users, included removal of snow
and ice,repair of chipped, fractured, or broken walk or curb from any
cause included by not limited to frost, landscaping (tree roots), or
permitted encroachments.
b. 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 ensuring 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.
c. The City may by ordinance or resolution establish parking rules and
regulations, including installation of metered parking.
d. 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 exceed the specifications and standards of the State
including compliance with any state or federal handicapped access
laws and regulations.
e. For purposes of this agreement, "Maintenance" does not mean repair
or replacement of any sidewalk 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
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(weather permitting), subject only to the temporary fix referred in
(A)(2)below.
f. 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 the agreement by the Public Works Director or his
designee and the Department of Transportation District Administrator
or his designee. If necessary,the Director of the Department of
Transportation and the City Manager may be asked to resolve the
issue.
2. 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
discovery 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 a time as repair replacement
can be completed. In the even replacement is deemed necessary,temporary
repairs may be performed until such time as reconstruction can be
programmed and completed. In the event replacement or construction is
required,the City shall notify the State of work being performed to an on-
system road and the City shall use an eligible state, federal, local, or private
funding to perform the work. Upon completion the City shall notify the State
after which the City once again is responsible for future maintenance.
3. The City agrees that the maintenance responsibility is in effect until the
sidewalks are reconstructed as provided in paragraph (e)unless otherwise
agreed to by the parities.
4. If, during its inspections, the City encounters a condition on the sidewalk that
it believes is caused by a design or construction effect 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.
5. The State agrees to protect, indemnify, defend and hold harmless the City
against and from all claims, liabilities, demands, causes of action,judgments,
and losses (including costs and attorney's fees incurred by the City in the
defense thereof)to the City arising in favor of or asserted by any person or
entity (including by not limited to, the State) on account of personal injury,
death or damage to property arising, in whole or in part, out of, or in
connection with the acts, omissions or manner of performance of nay of the
State's services or duties performed under this agreement, except that the
State is not responsible for any liability arising from the negligence of the
City.
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The City agrees to project, indemnify, defend and hold harmless the State, its
elected and appointed officials, and Montana Department of Transportation
against and from any and all claims, liabilities, demands, causes of action,
judgments, and losses (including costs and attorney's fees incurred by the
state in the defense thereof)to the State arising in favor of or asserted by any
person or entity (included,but not limited to, the City) on account of personal
injury, death, or damage to property arising, in whole or in part, out of, or in
connection with the acts, omissions, or manner of performance of any of the
City's services or duties performed under this agreement, except that the City
is not responsible for any liability arising from the negligence of the State.
6. 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.
X. MAINTENANCE
l. Street/Traffic Control/Storm Sewer. The City is responsible for the street,
traffic control (includes power service for signals) and storm sewer facilities
maintenance on Kagy Boulevard. For the purposes of this subsection,
maintenance activities include, but are not limited to, patching, crack sealing,
overlays, storm sewer repair and replacement, snow plowing, snow removal,
ice control, sweeping,traffic signal maintenance, striping, sign replacement,
vegetation control and other normally accepted preventive maintenance
practices.
2. Bike Lanes,Paths/Trails, Tunnels. 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 all bike lanes, paths/trails,
and pedestrian tunnels. For the purposes of this subsection, maintenance
activities include, but are not limited to: removal of snow and ice, surface
repair, stair/handrail repair, bike/ped counter repair, general path maintenance
including graffiti and other incidental maintenance.
3. Landscaping. 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 all landscaping, street trees, landscaping for the
paths and trails. For the purposes of this subsection, maintenance activities
include, but are not limited to: irrigation, tree grates, vegetation control and
other incidental landscape maintenance.
4. Lighting. 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, operation, and energy costs of the street lights,
path lights and tunnel lights. For purposes of this subsection,maintenance
activities include,but are not limited to: repairs, cleaning, replacement parts,
power service and other incidental lighting maintenance.
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5. Bus stops. 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 and operation of any current or future Bus stops or
cause them to be maintained. For purposes of the subsection, maintenance
activities include, but are not limited to: repairs, cleaning,replacement parts,
snow removal,trash removal,benches/shelters, bus signs and poles and other
incidental maintenance.
6. General. If for any reason the City or State is unable to maintain any of the
facilities for which it has accepted and/or is responsible for the maintenance,
the other party may perform the maintenance and request reimbursement from
the responsible party. Prior to performing the maintenance,the party
responsible for the maintenance must be notified by the other party of the
need for the maintenance and the other party's intention to perform the
necessary maintenance.
XI. OTHER
1. Ownership of Documents
All notes, calculations, computer runs, specifications, reports, special studies,
and other data prepared or collected under this agreement will become the
property of the DEPARTMENT and CITY upon completion of the study. The
both parties will be provided three hard copies and an electronic copy of the
PLAN upon completion of the study.
2. Access to Records
It is expressly understood that the CITY is required to maintain full records of
its performance and further to allow access to these records by
DEPARTMENT and the Montana Legislative Auditor and Legislative Fiscal
Analyst when required by law. The CITY agrees to create and retain records
supporting this Agreement for a period of three years after the completion date
of this Agreement or the conclusion of any claim, litigation or exception
relating to this Agreement taken by the State of Montana or a third party.
3. 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.
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The CITY must notify the State immediately of any change in liability
coverage during the term of this Agreement.
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.
4. Nondiscrimination
The CITY will require during the performance of any work arising out of this
agreement that the CITY, for itself, its assignees and successors, shall comply
with all nondiscrimination regulations shown in Exhibit"A".
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.
5. Termination
This agreement may be terminated for convenience by either party by that
party mailing or faxing a written notice of termination to the other's liaison
person. The DEPARTMENT may also terminate this agreement for default.
If termination occurs due to default,the notice shall state the manner of the
default, and offer the CITY an opportunity to explain the non-performance. If
the DEPARTMENT finds that the CITY has a reasonable excuse for non-
performance,which is beyond the control of the CITY,the DEPARTMENT
may set up a new work schedule to allow the completion of the agreed upon
work.
In any termination,the DEPARTMENT will make its contractual payments
proportionate to the work performed at the time of termination and the CITY
shall account for any property in its possession paid for with funds received
from the DEPARTMENT or supplied to it by the DEPARTMENT.
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6. Liabili
The Department will not be liable for any claims or suits related to the CITY
financial participation in the proposed plan, and the CITY will hold the
Department harmless and immune from any such suits, and will indemnify the
Department in the event of any loss incurred as a result of such claim or
lawsuit.
7. Liti ag tion
Controversy arising from this agreement may result in litigation. Arbitration,
unless agreed to in writing and pursuant to law, is not available.
8. Venue
In the event of litigation concerning this agreement,venue shall be in the
District Court of the First Judicial District of the State of Montana in and for
the County of Lewis & Clark. This agreement shall be interpreted according
to Montana law.
9. Agreement Modification
Any change in this agreement must be by written agreement of the parties.
10.Notice
All notices arising out of, or from, the provisions of this agreement shall be in
writing and given to the parties at the address of the party above, either by
regular mail or delivery in person.
11. 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
communication shall be a provision of this agreement unless specifically
provided within the written terms herein.
12. Debarment and Suspension(E.O.s 12549 and 12689)
No contract shall be made to parties listed on the General Services
Administration's List of Parties Excluded from Federal Procurement or
Nonprocurement Programs in accordance with E.O.s 12549 and 12689,
"Debarment and Suspension." This list contains the names of parties debarred,
suspended, or otherwise excluded by agencies, and contractors declared
ineligible under statutory or regulatory authority other than E.O. 12549.
Contractors with awards that exceed the small purchase threshold shall
provide the required certification regarding its exclusion status and that of its
principal employees.
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13. Conflict of Interest(2 CFR 200.112)
The Subrecipient must disclose in writing any potential conflict of interest to
the MDT in accordance with applicable Federal awarding agency policy.
14. Mandatory Disclosures (2 CFR 200.113)
The Subrecipient must disclose, in a timely manner, in writing to the MDT all
violations of Federal criminal law involving fraud, bribery, or gratuity
violations potentially affecting the Federal award. Failure to make required
disclosures can result in any of the remedies described in 2 CFR 200.338,
including suspension or debarment.
15. Internal Controls (2 CFR 200.303)
The Subrecipient must establish and maintain effective internal controls that
provide reasonable assurance to the MDT that the Subrecipient is in
compliance with Federal statutes,regulations, and terms and conditions of the
Federal award.
16. Political Activity(Hatch Act)
The CITY will comply with the provisions of the Hatch Act(5 U.S.C. 1501-
1508) which limits the political activities of employees whose principal
employment activities are funded in whole or in part with Federal funds.
IN WITNESS WHEREOF,the parties have caused this agreement to be executed.
CITY OF BO EMAN Cr
By:
City Manager
STATE OF T NA - DEPARTMENT OF TRANSPORTATION
By: 0 Date: ( (�
Montana Department of Trans ortation
Approved for Legal Content: Approved for Civil Rights Content:
By: By: L a`J'
Department Legal Services Department of Civil Rights
15
Agreement Exhibit A (Non-Discrimination 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, sex, sexual Race, color, national origin,
orientation, gender identity, age, parental/marital status, pregnancy,
disability, & Limited English Proficiency childbirth, or medical conditions 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
16
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.
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
17
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.
(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
18
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;
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.
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(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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Exhibit B - Glossary of Terms
ADA Americans with Disabilities Act
CE Construction Engineering
CFR Code of Federal Regulations
CN Construction
DBE Disadvantaged Business Enterprises
DOT Department of Transportation
EO Executive Order
FFY Federal Fiscal Year
FHWA Federal Highway Administration
IC Incidental Construction
IDC Indirect Cost
LEP Limited English Proficiency
MCA Montana Code Annotated
MDT Montana Department of Transportation
MEPA Montana Environmental Policy Act
MMIA Montana Municipal Interlocal Authority
MOU Memorandum of Understanding
NEPA National Environmental Policy Act
NHPA National Historic Preservation Act
PE Preliminary Engineering
PROWAG Public Rights-of-Way Accessibility
Guidelines
RW Right of Way
STPU Surface Transportation Program - Urban
USC United States Code
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