HomeMy WebLinkAbout20- Memorandum of Agreement - Montana Department of Transportation - Valley Center SUP Maintenance Agreement CITY/STATE MEMORANDUM OF AGREEMENT
VALLEY CENTER(U-1211)/SUP
MAINTENANCE AGREEMENT
CITY OF BOZEMAN
This Memorandum of Agreement (Agreement) is made and entered into by and between
the City of Bozeman, MT ("the City"), 121 N Rouse Ave, Bozeman, MT 59715,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 respective maintenance responsibilities
and duties of the City and MDT associated with the existing shared use path including ADA
facilities with sidewalk pedestrian curb ramps,and landscaping facilities installed within
Valley Center Road (U-1211) right-of-way as shown in Attachment B. This Agreement sets
forth terms necessary for the City to provide long term maintenance of the facilities shown
in Attachment B.
WHEREAS, MDT is responsible for planning,designing,constructing and maintaining State
highway 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) including Valley Center Road (U-1211); and
WHEREAS,The City,as part of the Catron Subdivision,required the construction of the
Shared Use Path Improvements Project including the installation of the Shared Use Path
and ADA facilities with sidewalk pedestrian curb ramps,and landscaping facilities in the
Valley Center Road (U-1211) right-of-way as shown in Attachment B; and
WHEREAS,The City has agreed to be responsible for the operation and maintenance of the
existing shared use path including ADA facilities with sidewalk pedestrian curb ramps,and
landscaping facilities in the Valley Center Road (U-1211) right-of-way as shown in
Attachment B; and
WHEREAS,This Agreement must be fully executed by the City before use of the requested
approach along Valley Center Road (U-1211) associated with the Catron Subdivision; and
NOW,THEREFORE,The Parties set forth the fundamental duties and responsibilities
necessary for the City to operate and maintain the facilities proposed in Valley Center Road
(U-1211) right-of-way as shown in Attachment B.
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ARTICLE (.OBLIGATIONS OF THE CITY:
1. The Parties acknowledge the developer of the Catron Subdivision will provide the
general design of the existing Shared Use Path ("SUP") including ADA facilities with
sidewalk pedestrian curb ramps,and landscaping facilities that the City will maintain
within State Highway System along Valley Center Road (U-1211). The documents are
identified as Attachment"B"attached and made part of this agreement.
2. The City agrees to require the Catron Subdivision Developer to submit the final plan
documents,as a supplement to Attachment B, to MDT for review and approval by
appropriate organizational units of MDT prior to project construction.
3. Shared-Use Path
a. The City agrees that it is responsible,at no cost to MDT,to service,maintain,repair,
and pay the cost of operating the path within the project limits,such that it does not
negatively impact the operation of the path or the safety of the traveling public. If
all or part of the shared use path becomes unsafe for use,the City agrees to restrict
access to the affected area until the condition has been remedied.
b. For the purposes of this Agreement,"maintenance of a shared-use path" is defined
as: grinding or milling down displacements; surface patching; crack sealing;
sweeping; cleaning;washing; replacing portions of damaged path; removal of snow
and ice; repair of chipped, fractured,or broken surface from any cause,including
but not limited to frost heaving,landscaping,tree roots,or encroachments; removal
of debris and other obstructions or impediments to the safe travel of pedestrians or
other path users;maintenance of path-related signs; and any and all other normally
accepted maintenance practices. .
c. For the purposes of this Agreement,"maintenance of shared-use path signs," is
defined as:the inspection, cleaning,repair and replacement of signs damaged
through weathering,vandalism,wind,and other means.
4. Landscaping
a. The City agrees that it is responsible,at no cost to MDT, to service,maintain and
repair any landscaping installed as part of this project.
b. For the purposes of this Agreement,"maintenance of landscaping," is defined as:
mowing,watering, debris removal,weed control, fertilizing,tree/shrub trimming
including removal, replacement and maintenance of sight triangles,the repair and
replacement of fences,and maintenance of all features in compliance with
ADA/PROWAG.
6. The City agrees any change, expansion,increase,or revision in the design or
construction of the Shared Use Path including ADA facilities with sidewalk pedestrian
curb ramps, and landscaping facilities described in Attachment"B" must receive prior
written approval from MDT.
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7. The City agrees that no fixture,building,structure or other permanent installation
other than those shown in Attachment"B" shall be constructed or placed within MDT
right-of-way without prior written approval from MDT.
8. The City agrees to be responsible for any and all damages to the State Highway System
(U-1211) facilities caused by the City,the City's staff or contractors, or resulting from
the City's maintenance operations. The City must repair any and all damages,at its sole
expense,after notification of damage by MDT and approval of repair work needed,
method of repair,and schedule for repair.
9. The City,at its sole expense,agrees to maintain,or cause to be maintained,the facility
improvements installed with the Shared Use Path including ADA facilities with sidewalk
pedestrian curb ramps, and landscaping facilities as shown in Attachment B, in
satisfactory condition,including but not limited to, repair within Valley Center Road (U-
1211) right-of-way. The City agrees it will maintain the Shared Use Path including ADA
facilities with sidewalk pedestrian curb ramps and landscaping facilities to approved
standards shown in Attachment B. Any damage must be repaired within 60 calendar
days of malfunction or damage.
10.If the City fails to perform or cause to be performed,the maintenance obligations as
required by this agreement within 120 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.
ARTICLE II. OBLIGATIONS OF MDT:
1. MDT agrees it will review all plans,designs and data submitted by the City and
Developer for any proposed maintenance operations to the Shared Use Path including
ADA facilities with sidewalk pedestrian curb ramps, and landscaping facilities to ensure
the plans meet MDT standards shown in Attachment B.
ARTICLE III-GENERAL TERMS AND CONDITIONS
1. Term-The term of this Agreement shall be ten (10) years.After the initial ten (10)year
term,this Agreement will renew automatically,for successive one (1) year terms,
unless superseded by a new Agreement between the parties.
2. Termination-This Agreement may be terminated by MDT if City violates or breaches
any term,condition, or article of this Agreement and the City has failed to correct(or
reasonably initiate correction) within 60 days of receiving notice in writing addressed
to City's representative,of such violation or breach of any term, condition, or article of
this Agreement. If this Agreement is terminated, MDT will maintain the Shared Use
Path and associated facilities as it sees fit and may remove the improvements without
City or landowner approval. MDT may seek compensation for maintenance or removal
of the improvements from City.
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3. Other Agreements- Other Agreements pertaining to the project area remain in full
force and effect. In the case of a conflict between this Agreement and a previously
executed Agreement,the terms of this Agreement apply.
4. Hold Harmless&Indemnification
a. City agrees to 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 (including the cost of defense and reasonable attorney fees)
arising in favor of or asserted by City's employees or third parties on account of
personal or bodily injury, death or damage to property, arising out of the acts or
omissions of City,its agents, or sub-contractors,under this Agreement, except
the negligence of MDT.
b. The State and Department of Transportation agrees to protect,defend,
indemnify,and hold 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 judgments (including 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 personal or bodily injury,
death or damage to property,arising out of the acts or omissions of MDT,its
agents, or sub-contractors, under this Agreement, except the negligence of City.
5. Insurance
a. General Requirements: Each party shall maintain for the duration of this
Agreement,at its own cost and expense,insurance against claims for injuries to
persons or damages to property that may arise from or in connection with the
performance of the duties and obligations in this Agreement by each party, its
agents,employees,representatives,assigns,or sub-contractors.This insurance
shall cover such claims as may be caused by any negligent act or omission.
b. General Liability Insurance: Each party shall purchase and maintain occurrence
coverage with combined single limits for bodily injury, personal injury,and
property damage of$1 million per occurrence and $2 million aggregate per year
to cover such claims as may be caused by or arising out of any negligent acts or
omissions in work or services performed under this Agreement,or as
established by statutory tort limits as provided by a public entity self-insurance
program either individually or on a pool basis as provided by Mont. Code Ann.
Title 2, Chapter 9.
c. General Provisions:All insurance coverage must be with a carrier licensed to do
business in the State of Montana or by a public entity self-insured program
either individually or on a pool basis. Each party must notify the other
immediately of any material change in insurance coverage, such as changes in
limits, coverage, change in status of policy, etc. Each party reserves the right to
Page 14
request complete copies of the other party's insurance policy or self-insured
memorandum of coverage at any time.
d. Workers' Compensation Insurance: City must maintain workers' compensation
insurance and require its contractors and its contractor's sub-contractors to
carry their own workers compensation coverage while performing work within
MDT right-of-way in accordance with Mont. Code Ann. §§39-71-401 and 39-71-
405. Neither the contractor nor its employees are employees of MDT. This
insurance/exemption must be valid for the entire Agreement period.
6. Public Safety
It is agreed, if any repairs to the elements of the shared use path including ADA facilities
with sidewalk pedestrian curb ramps,landscaping facilities must be performed to
address or prevent a public hazard, City will immediately protect the area from public
access, contact the appropriate MDT District Maintenance Office, and make reasonable
and timely effort to correct or repair the hazard.
7. Invoicing and Indirect Cost(IDC)
a. If MDT incurs any costs resulting from this Agreement, MDT shall be entitled to
be compensated for such costs by City and the City shall pay the same within
thirty (30) days of its receipt of such invoices.
Mont. Code Ann.§17-1-106,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 10.41% for fiscal year 2020 (July 1, 2019 to June 30, 2020).If the work
occurs or extends into fiscal year 2021 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: City Clerk
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 5
8. 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 except as otherwise noted in
this agreement. In case of conflict between the terms and conditions of this Agreement
and the laws of the State of Montana,the laws of the State of Montana shall control.
9. 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.
10.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.
11.Non-Discrimination- City will require that during the performance of any work arising
out of this Agreement 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.
12.ADA-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.
13.Audit- 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, City maintains in
connection with this Agreement.
14.Utilities --This Agreement is subject to the right of any private or public utility entity
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
District Utility Agent.
15.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.
Page 16
16. Representatives
a. City's Representative: City's Representative for this Agreement shall be City
Manager or designee or such other individual as City shall designate in writing.
Whenever approval or authorization from or communication or submission to
City is required by this Agreement,such communication or submission shall be
directed to City's Representative and approvals or authorizations shall be issued
only by such Representative; provided,however,that in exigent circumstances
when City's Representative is not available, MDT may direct its communication
or submission to other designated City personnel or agents.
b. MDT's Representative: MDT Representative for this Agreement shall be the
District Administrator or Maintenance Chief or such other individual as MDT
shall designate in writing. Whenever direction to or communication with MDT is
required by this Agreement, such direction or communication shall be directed
to MDT's Representative; provided,however, that in exigent circumstances
when MDT's Representative is not available,City may direct its direction or
communication or submission to other designated MDT personnel or agents.
17.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 17
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.
MONTANA DEPARTMENT OF TRANSPORTATION
Date / By: ell
Mo n epartment of Transportation
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Approved for Legal Content: By: —0)6Mw
Approved for Civil Rights Content: By: lCo�
CITY OF B7AN
City Manager
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Page 8
ATTACHMENT A
MDT Nondiscrimination and Disability Accommodation Notice
Rev. 01/2019
ATTACHMENT A
MDT NONDISCRIMINATION
AND
DISABILITY ACCOMMODATION NOTICE
Montana Department of Transportation ("MDT") is committed to conducting all of its business in an
environment free from discrimination, harassment, and retaliation. In accordance with State and
Federal law MDT prohibits any and all discrimination and protections are all inclusive (hereafter
"protected classes") by its employees or anyone with whom MDT does business:
Federal protected classes State protected classes
Race, color, national origin, Race,color, national origin, parental/marital
sex, sexual orientation,gender identity, status, pregnancy,childbirth,or medical
age,disability, & Limited English Proficiency 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 itserves
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. 01/2019
iv. Information on how to request information in alternative accessible formats.
c. In accordance with Mont. Code Ann. § 49-3-207, PARTY will include a provision, in all of
its hiring/subcontracting notices,that all hiring/subcontracting will be on the basis of
merit and qualifications and that PARTY does not discriminate on the grounds of any
protected class.
(3) Participation by Disadvantaged Business Enterprises(DBEs):
a. If the PARTY receives federal financial assistance as part of this contract/agreement, the
PARTY will make all reasonable efforts to utilize DBE firms certified by MDT for its
subcontracting services.The list of all currently certified DBE firms is located on the MDT
website at mdt.mt.gov/business/contracting/civil/dbe.shtmi
b. By signing this agreement,the PARTY assures that:
The contractor, sub recipient or subcontractor shall not discriminate on the basis of
race, color, national origin, or sex in the performance of this contract. The contractor
shall carry out applicable requirements of 49 CFR part 26 in the award and
administration of DOT-assisted contracts. Failure by the contractor to carry out these
requirements is a material breach of this contract, which may result in the termination
of this contract or such other remedy as the recipient deems appropriate.
c. PARTY must include the above assurance in each contract/agreement the PARTY enters.
(4) Solicitation for Subcontracts, Including Procurement of Materials and Equipment: In all
solicitations, either by competitive bidding,or negotiation, made by the PARTY for work to be
performed under a subcontract, including procurements of materials, or leases of equipment,
each potential subcontractor or supplier will be notified by the PARTY of the PARTY's obligation
under this contract/agreement and all Acts and Regulations of the United States and the State of
Montana related to Non-Discrimination.
(5) Information and Reports:The PARTY will provide all information and reports required by the
Acts, Regulations, and directives issued pursuant thereto and will permit access to its books,
records,accounts,other sources of information and its facilities as may be determined by MDT or
relevant US DOT Administration to be pertinent to ascertain compliance with such Acts,
Regulations,and instructions. Where any information required of a contractor is in the exclusive
possession of another who fails or refuses to furnish the information, the PARTY will so certify to
MDT or relevant US DOT Administration, as appropriate, and will set forth what efforts it has
made to obtain the information.
(6) Sanctions for Noncompliance: In the event of a PARTY's noncompliance with the Non-discrimination
provisions of this contract/agreement, MDT will impose such sanctions as it or the relevant US DOT
Administration may determine to be appropriate, including, but not limited to:
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
J
Rev. 01/2019
(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 etseq,, 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 etseq.), (prohibits discrimination on the basis
of sex);
- Section 504 of the Rehabilitation Act of 1973, (29 U.S.C. § 794 etseq.),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 etseq.),(prohibits
discrimination on the basis of age);
- Airport and Airways Improvement Act of 1982, (49 U.S.C. §471,Section 47123),asamended,
(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. 01/2019
- 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 etseq.).
- 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.
I
Page 4 of 4
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