HomeMy WebLinkAbout04-20-20 City Commission Packet Materials - C6. Maintenance Agreement with MDT for S 19th Ave Improvements for Nexus Point
Commission Memorandum
REPORT TO: Honorable Mayor and City Commission
FROM: Shawn Kohtz, City Engineer
Greg Sullivan, City Attorney
Mitch Reister, Public Works Director
SUBJECT: Memorandum of Agreement - South Avenue Widening -
Maintenance Agreement between City and Montana Department of
Transportation
AGENDA ITEM TYPE: Consent
MEETING DATE: April 20, 2020
RECOMMENDATION: Authorize the City Manager to execute the attached maintenance
agreement with the Montana Department of Transportation (MDT) for South 19th Avenue
improvements associated with the Nexus Point Site Plan Application.
BACKGROUND: The Nexus Point Development is required to widen S. 19th Avenue adjacent
to the development as a condition of site plan approval to offset the development impact on the
City’s transportation system. South 19th will be widened consistent with the City’s arterial street
standard. The Nexus Point developer completed design and will construct improvements to S.
19th Avenue in the summer of 2020. The developer is seeking MDT approval of the project.
MDT has required that the City enter into the attached maintenance agreement prior to approving
construction of the S. 19th project.
Pursuant to MDT’s contract, the City will be responsible for all elements of maintenance of the
S. 19th Avenue improvements generally including the street, bike and pedestrian improvements,
and storm drainage infrastructure upon completion of construction. The City already maintains
this section of S. 19th Avenue, which is an urban route under the State Urban Highway System.
MDT asserts that the City is required to agree to the conditions in the attached Maintenance
Agreement prior to MDT allowing the Nexus Point Developer to begin construction. The
agreement has been exhaustively reviewed by City legal and engineering staff.
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The maintenance responsibilities detailed are commensurate with activities the City already
performs, hence staff are recommending entering into this agreement. However, we believe
some of the language in the agreement needs to be clarified or amended in future contracts;
therefore, the agreement is recommended to be submitted to MDT under protest to allow for
wording changes in future contracts. The issues we are concerned with include:
1. MDT has not required the City to approve such maintenance contracts in advance of
construction on the State Urban Highway System in the past. This new MDT
requirement is delaying new construction projects.
2. The City already maintains the urban highway routes within City limits. The benefit
provided by MDT for urban routes is the possibility of federal aid monies supporting
maintenance or road expansion projects on those routes. However, that federal aid
money to the City of Bozeman equates to approximately $1 million per year, which is
dedicated to improvements on Kagy Boulevard for more than a decade. Therefore, the
City does not receive benefit or added value from MDT oversight on any urban routes
other than Kagy Boulevard and will not for some time. Such MDT oversight for projects
that are not funded with federal aid monies unnecessarily adds significant staff time for
City, private developers, and MDT staff.
3. The Montana League of Cities and Towns (MLCT) and MDT are currently working on a
single agreement that covers maintenance of all urban routes in the State. That
agreement will make individual agreements, such as this agreement, redundant and
unnecessary. That agreement is anticipated to be complete in the May/June 2020
timeframe.
4. MDT oversight on urban highway routes that do not receive federal aid funding is not a
federal requirement but a state requirement. Other state transportation departments, such
as the State of Washington, do not require such general oversight on urban routes, except
during the administration of federal aid projects on said routes. City staff are working
with the MLCT to draft a state legislative amendment that reduces MDT oversight to
project-specific federal aid allocations on urban routes. This is a long-term undertaking.
5. The requirements for maintenance of sidewalks and the overall unilateral approach MDT
takes with these maintenance agreements are unfavorable to the City. Nevertheless,
absent the City agreeing to the terms included in this contract, MDT indicated it will
delay the project – something staff believe should not happen as widening of S. 19th
Avenue is a critical infrastructure improvement and a development requirement to offset
the impacts of the Nexus Point Development.
6. City staff find two of the WHEREAS statements to be inaccurate, yet MDT is unwilling
to acknowledge the inaccuracies.
UNRESOLVED ISSUES: Future wording of maintenance agreements will need to be adjusted,
especially for the state wide agreement currently being negotiated between MLCT and MDT.
Therefore, after exhaustive review and negotiations with MDT, it is recommended to allow the
City Manager to sign the agreement under protest to continue to negotiate language in future
agreements.
FISCAL EFFECTS: Incremental maintenance cost of a wider street section, bike, and
pedestrian facilities on S. 19th Avenue
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ALTERNATIVES: As suggested by the City Commission.
Attachments: City/State Memorandum of Agreement S 19th Avenue (U-1216) Widening –
Bozeman Maintenance Agreement (2 originals)
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City/State
Memorandum of Agreement
S 19th Avenue (U‐1216) Widening ‐ Bozeman
Maintenance Agreement
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 widening of S 19th Avenue (U-1216) near its
intersection with Graf Street associated with the Nexus Point Development. Construction
within the right-of-way includes widening of S 19th to create a 5-lane section of roadway, a
new street approach (Arnold Street), curb and gutter, lighting, striping, sidewalk,
landscaping and other sidewalk amenities (the Project), per the approved plans
(Attachment B). This Agreement sets forth the terms necessary for the City to perform
construction and provide maintenance on S 19th Avenue near its intersection with Graf
Street.
WHEREAS, MDT is responsible for planning, designing, constructing and maintaining State
Highways and roadways, and 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 and in accordance with Title 23 United States Code (U.S.C) and Title
60 Montana Code Annotated (MCA) including S 19th Avenue (U-1216), a commission-
designated highway system; and
WHEREAS, S 19th Avenue (U-1216) is on the Urban Highway System within the State of
Montana and is eligible to receive Federal Highway Funds; and
WHEREAS, in accordance with the State’s agreement with the Federal Highway
Administration (FHWA) of the U.S. Department of Transportation, MDT must ensure that
certain requirements are met in order for MDT to fulfill its obligations to the FHWA and for
S 19th Avenue (U-1216) to be eligible for federal funds;
WHEREAS, The City has agreed to maintain, or cause to be maintained, the Project; and
WHEREAS, This Agreement must be fully executed before initiation of construction of the
Project within commission-designated right-of-way; and
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NOW, THEREFORE, The Parties set forth the fundamental duties and responsibilities
necessary for the maintenance of S 19th Avenue (U-1216) associated with the construction
of the Project, within public right-of-way.
ARTICLE I. GENERAL OBLIGATIONS OF MDT
1. If the City does not fulfill their maintenance requirements as stated herein, MDT may
complete the required maintenance and seek compensation from the City. In doing so,
MDT must first provide notice to the City allowing 60 days to complete any such
maintenance. If MDT performs such maintenance under this section, it must provide
detailed invoices of such costs to the City.
2. MDT may complete any maintenance required due to public emergency and seek
compensation from the City for any costs incurred. In doing so, MDT may first provide
notice to the City, when possible, allowing time to complete any such maintenance. If
MDT performs maintenance under this section, it must provide detailed invoices of such
costs to the City.
ARTICLE II. OBLIGATIONS OF THE CITY:
1. Sidewalk and Pedestrian Facilities
a. Upon completion of the Project, the City agrees that it is responsible, at no cost to
MDT, to service, maintain, repair, and pay cost of operating the sidewalk and
pedestrian facilities within the project limits, such that it does not negatively
impact the operation of the pedestrian facility or the safety of the traveling public.
If all or part of the Project becomes unsafe for use, the City agrees to restrict
access to the affected area until the condition has been remedied.
b. For the purposes of this Agreement, “maintenance of the sidewalk and pedestrian
facilities” is defined as: grinding or milling down displacements; surface patching;
crack sealing; sweeping; cleaning; washing; replacing portions of damaged
sidewalk; 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
safe pedestrian travel; and any and all other normally accepted maintenance
practices.
2. Lighting
a. Upon completion of the Project, the City agrees that it is responsible, at no cost to
MDT, to service, maintain, repair and pay the costs of operating (including utility
costs) the lighting installed as part of this project.
b. For the purpose of this Agreement, “maintenance of the lighting”, is defined as: the
inspection of the lighting system for operation, cleaning lamps, lenses and
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reflectors, stocking of replacement parts, bulb replacement, and repairs to and
replacement of damaged fixtures.
c. Any major repair costs for signal or lighting damage not recoverable from third
parties shall be the responsibility of the City.
d. The City shall pay for the cost of energy for the lighting.
3. Landscaping / Irrigation Equipment
a. Upon completion of the Project, the City agrees that it is responsible, at no cost to
MDT, to service, maintain and repair the landscaping and irrigation equipment
installed as part of this project.
b. For the purposes of this Agreement, “maintenance of landscaping and irrigation
system,” 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. The irrigation system shall be fully operational,
free of leaks, with heads selected and adjusted to reduce water waste.
c. If the City is not able to complete the maintenance on the landscaping and
irrigation system as per this Agreement, the improvements may become the
property of MDT, without reimbursement. If landscaping or irrigation become
MDT property, MDT will maintain the property as it sees fit and may remove the
landscaping and irrigation system without City approval. MDT may seek
compensation for the maintenance or removal of the landscaping and irrigation
system from the City.
4. Sidewalk Benches/Bike Racks/Other Sidewalk Amenities
a. Upon completion of the Project, the City agrees that it is responsible, at no cost to
MDT, to service, maintain and repair the benches, bike racks, planters, tree grates,
and other sidewalk amenities installed as part of this project.
b. For the purposes of this Agreement, “maintenance of benches, bike racks, planters,
tree grates, and other sidewalk amenities,” is defined as: regular inspection to
ensure the safety and functionality of the amenity, and that the hardware is intact,
fasteners are made flush with surfaces, and seats and backings are smooth with no
protrusions or sharp edges. The placement must allow for a clear approach area
adjacent to the furnishing and meet pedestrian access route requirements
consistent with ADA (PROWAG) requirements.
5. The City agrees that no fixture, building, structure, or other permanent installation will
be constructed or placed within Transportation Commission designated right-of-way
without prior written approval from MDT.
6. The City shall complete the necessary environmental processes for modification to the
state highways and roadways and demonstrate that all, if any, environmental issues
associated with the proposed project have been identified and mitigated. The City
agrees it will prepare and file any required environmental documents and apply for and
obtain any permits required by other governmental agencies at no expense to MDT
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prior to maintenance taking place within Transportation Commission designated right-
of-way.
7. The City agrees to be responsible for any and all damages to facilities within
Transportation Commission designated right-of-way 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 of repair
work needed, method of repair, and schedule for repair.
8. If the City fails to perform or cause to be performed, the maintenance obligations as
required by this agreement within 60 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 without prior
notice to the City. The City agrees to be responsible for and to reimburse MDT for said
maintenance, including Indirect Costs.
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 the 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 the City’s representative, of such violation or breach of any term,
condition, or article of this Agreement. If this Agreement is terminated, the
improvements become the property of MDT, without reimbursement. MDT will
maintain the property as it sees fit and may remove the improvements without City or
landowner approval. MDT may seek compensation for maintenance or removal of the
improvements from the City.
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. The 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 the 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
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of the 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 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 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 the 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 request complete
copies of the other party’s insurance policy or self-insured memorandum of
coverage at any time.
d. Workers’ Compensation Insurance: The 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 Project must be
performed to address or prevent a public hazard, the 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 the City and the City shall pay the same within thirty
(30) days of its receipt of such invoices.
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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: Town Clerk/Treasurer
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
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 – 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.
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
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Pedestrian Facilities in the Public Right-of-Way (2011 PROWAG), and MDT’s detailed
drawings, 608 series.
13. 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.
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.
16. Representatives
a. City’s Representative: The City’s Representative for this Agreement shall be the
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 the 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: The 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.
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Signatures:
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.
SIGNATURES:
STATE OF MONTANA, DEPARTMENT OF TRANSPORTATION
By ______________________________________________ ______________________, 2020
Montana Department of Transportation
________________________________
Approved for Legal Content
________________________________
Approved for Civil Rights
CITY OF BOZEMAN
_______________________________________
Dennis M. Taylor
Interim City Manager
Attest:
__________________________________
Mike Maas
City Clerk
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ATTACHMENT A
MDT Nondiscrimination and Disability Accommodation Notice
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ATTACHMENT B
PROJECT PLANS
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