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HomeMy WebLinkAbout18- Memorandum of Agreement - Montana Department of Transporation (MDT) - Blackmore Bend Maintenance Agreement CITY/STATE MEMORANDUM OF AGREEMENT BLACKMORE BEND (N-50 &U-1215). MAINTENANCE AGREEMENT BOZEMAN, MONTANA September 2018 This Memorandum of Agreement (Agreement) is made and entered into by and between the city of Bozeman ("the City"), a self-governing municipality operating pursuant to its Charter and the laws of the State of Montana, P.O. Box 1230, Bozeman MT 59771 and the Montana Department of Transportation ("MDT"), a department of the State of Montana, P.O. Box 201001, Helena MT 59620-1001 together referred to as "the Parties." The Purpose of this Agreement is to set forth the respective responsibilities and duties of the City and MDT associated with the placement of sidewalk,within the Highland Blvd (U- 1215) Reference Post (RP) 1.51 to 1.63 and E. Main (N-50) RP 90.17 to 90.29 right-of-way in the City of Bozeman. This Agreement sets forth terms necessary to provide the City encroachment to maintain the sidewalk. Any encroachment 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 has jurisdiction for E. Main St (N-50) and Highland Blvd (U-1215) and maintains E. Main (N-50); and WHEREAS, the "Project" includes the installation of sidewalk in the E. Main St and Highland Blvd right-of-way, per the approved plans (Attachment B); and WHEREAS,The City has agreed to maintain, or cause to be maintained, the sidewalk subject to this agreement; and WHEREAS,This Agreement must be fully executed before the initiation of construction of the Project within MDT right-of-way; and NOW,THEREFORE, The Parties set forth the fundamental duties and responsibilities necessary for the encroachment of the Project into MDT right-of-way. In consideration of the following mutual promises the parties agree as follows: ARTICLE I. OBLIGATIONS OF THE CITY- MAINTENANCE 1. The City agrees any maintenance that requires lane closure or equipment use within MDT right-of-way must be reviewed and approved by MDT Bozeman Area Maintenance staff prior to initiation of the maintenance. 2. The City, at the City's sole expense, agrees to maintain, or cause to be maintained, the sidewalk in satisfactory condition, including but not limited to, snow removal, trimming, sidewalk replacement and irrigation equipment repair within MDT's right-of- way. Any damage must be repaired within 30 calendar days of malfunction or damage. 3. The City agrees that no fixture, building, structure, or other permanent installation will be constructed or placed within MDT right-of-way without prior written approval from MDT. 4. 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. S. 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 repair work needed, method of repair, and schedule of repair. 6. MDT shall notify the City in writing of any failure to maintain. If the City fails to maintain the sidewalks as required by this Agreement, the improvements shall become the property of MDT. MDT may seek compensation from the City for the cost of removal of the sidewalks. 7. 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. 8. If the City fails to perform or cause to be performed,the maintenance obligations as required by this agreement within 30 days of written notification from MDT, MDT may complete the required maintenance and the City shall be required to compensate MDT for its performance of said maintenance. 9. MDT may complete any maintenance required due to a public emergency. The City agrees to be responsible for and to reimburse MDT for said maintenance, including Indirect Costs. ARTICLE II. GENERAL TERMS AND CONDITIONS 1. Term - This Agreement shall continue for ten (10) years at which time the parties may review the Agreement for updates or modifications. This Agreement will remain in effect until the new Agreement is in place. 2. 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 judgments (include the cost of defense and reasonable attorney fees) arising in favor of or asserted by the City's employees or third parties on account of damage to property, bodily or personal injury, or death arising out of any services performed, act or omission that in any way results from the acts or omissions of the City, or their agents, or subcontractors, under this Agreement, except the negligence of MDT under this Agreement. MDT shall protect, defend, indemnify, and hold the City, its elected and appointed officials, agents, and employees,while acting within their duties as such, harmless from and against all claims, liabilities, demands, causes of action, and judgements (include the cost of defense and reasonable attorney fees) arising in favor of or asserted by the MDT's employees or third parties on account of damage to property, bodily or personal injury, or death arising out of any services performed, act or omission that in any way results from the acts or omissions of the MDT, or their agents, or subcontractors, under this Agreement, except the negligence of the City under this Agreement. 3. Insurance- a. 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 the term of this Agreement. The City's insurance coverage shall be primary insurance with respect to the State, its officers, officials, employees and volunteers and shall apply separately to the facility and its location. 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. b. Workers' Compensation Insurance: The City provides its employees workers compensation coverage through the MMIA. The City must maintain workers' compensation insurance and require its contractor and its contractor's subcontractors to carry their own workers compensation coverage while performing work within MDT right-of-way in accordance with §39-71-401/405, MCA. Neither the contractor nor its employees are employees of MDT. This insurance must be valid for the entire Agreement period. 4. Public Safety- It is agreed, if any repairs to the Project must be done to prevent a public hazard, the City will, or will cause to, immediately protect the area from public access, contact MDT Bozeman Area Maintenance, and take corrective action to repair the hazard. S. Invoicing and Indirect Cost (IDC).- If MDT incurs any costs as a result of a public emergency, or 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 10.49% for fiscal year 2019 (July 1, 2018 to June 30, 2019). If the work occurs or extends into fiscal year 2020 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: Attn: City Manager City of Bozeman 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 6. 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. 7. 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. 8. 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. 9. 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. 10.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. 11. 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. 12.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 Butte Utility Agent. 13.Amendment and Modification -This Agreement may be modified or amended only by written Addendum signed by the parties. In addition to the terms and conditions contained herein, the provisions of any Addendum may be incorporated and made a part hereof by this reference in the terms of the amendment so provided. In the event of any conflict between the terms and conditions hereof and the provisions of any Addendum,the provision of the Addendum shall control, unless the provisions thereof are prohibited by law. 14. 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. 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 �/ /� B 6M4�a 2018 Y Mon a D partment of Transportation Approved for Legal Cont nt Approved for Civil Rights CITY OF BOZEMAN BY t_-•�.. - Pam/ G V � 2 018 Andrea Surratt, City Manager City of Bozeman, Montana ATTEST: City Clerk U; `�% • 1 883 jN Co. (SEAL) ATTACHMENT A MDT Nondiscrimination and Disability Accommodation Notice 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. Page 1 of 4 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. Page 2 of 4 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 3of4 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 ATTACHMENT B Site Plan s I I 41 / / �{ V HAGGEftTY LANE THE MARKETPLACE AT SGA o BLACKNIORE BEND WIWAI I Wyl-PIE I BOZENIAN.SIO,"ANA