Loading...
HomeMy WebLinkAbout06-01-20 City Commission Packet Materials - C08. MOA w MDT for Shared Use Path Assoc w Les Schwab Development Commission Memorandum REPORT TO: Honorable Mayor and City Commission FROM: Shawn Kohtz, City Engineer Mitch Reister, Public Works Director SUBJECT: Memorandum of Agreement between City and Montana Department of Transportation for Shared Use Path Associated with Les Schwab Development AGENDA ITEM TYPE: Consent MEETING DATE: June 1, 2020 RECOMMENDATION: Authorize the City Manager to execute the attached maintenance agreement with the Montana Department of Transportation (MDT) for addition of a shared use path along the Frontage Road and Springhill Road associated with the Les Schwab Site Plan Application. BACKGROUND: The Les Schwab Development is required to construct shared use path adjacent to the development as a condition of site plan approval to offset the development impact on the City’s transportation system. The developer completed design and will construct the shared use path improvements 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 shared use path. Pursuant to MDT’s contract, the City will be responsible for all elements of maintenance of the shared use path consisting of a 10-foot wide asphalt path upon completion of construction. The City already maintains this section of Springhill Road, which is an urban route under the State Urban Highway System, while MDT maintains the Frontage Road. MDT asserts that the City is required to agree to the conditions in the attached Maintenance Agreement prior to MDT allowing the Les Schwab Developer to begin construction. The agreement has been exhaustively reviewed by City legal and engineering staff. 68 Staff 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 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. MLCT and MDT are also working on a single agreement for MDT maintained routes within City limits, and that agreement is anticipated to be complete approximately one year from now. 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 shared use paths and 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. Staff believe that should not happen in order to continue to extend the shared use path transportation system in this area. 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 agreements 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 the shared use path is assigned to the adjacent property owner, in this case the Les Schwab property owner, per City Code 34.04.020 69 ALTERNATIVES: As suggested by the City Commission. Attachments: City/State Memorandum of Agreement Springhill Road/U-1219, Bozeman Shared Use Path, Les Schwab Development 70 Page | 1 CITY/STATE MEMORANDUM OF AGREEMENT Springhill Road/U-1219, Bozeman Shared Use Path, Les Schwab Development April 2020 This Memorandum of Agreement (Agreement) is made and entered into by and between the City of Bozeman, (City), a municipal corporation organized and existing under the laws of the State of Montana, P.O. Box 1230, Bozeman, MT 59771, and the State of Montana Department of Transportation (“ MDT” or “the State”), whose address is 2701 Prospect Ave., 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 Parties associated with the placement of a shared use path within the Springhill Road/U-1219 right-of-way, per the approved plans (Attachment B) in the City of Bozeman. 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) and maintains and has jurisdiction for Springhill Road/U- 1219; and WHEREAS, the “Project” includes installation of a shared use path within the Springhill Road/U-1219 right-of-way, per the approved plans (Attachment B), and this Agreement sets forth terms regarding the City’s maintenance responsibilities for the shared use path shown in Attachment B that the City must meet for MDT to provide the Developer the necessary Encroachment Permit to construct the shared use path proposed for the Les Schwab Store property along Springhill Road/U-1219 shown in Attachment B. Any Encroachment Permit granted to the Developer by this Agreement is explicitly subject and subordinate to the rights and title of MDT and the State of Montana; and WHEREAS, The City has agreed to maintain the shared use path within MDT right-of-way; and WHEREAS, This Agreement must be fully executed before 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. 71 Page | 2 ARTICLE I. OBLIGATIONS OF THE CITY: 1. The City agrees any maintenance within MDT right-of-way that requires lane closure or equipment 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, within MDT right-of-way the shared use path and shared use path signs (if any) in satisfactory condition, as follows: 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 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 all associated drainage features; 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. 3. Any damage must be repaired within 60 calendar days of written notification being sent to the City. 4. The City agrees that no fixture, building, structure, or other permanent installation other than as allowed in this Agreement will be constructed or placed within MDT right-of-way without prior written approval from MDT. 5. 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. 6. 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 72 Page | 3 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. 7. 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. 8. 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 has violated or breached any term, condition or article of this Agreement and the City has failed to correct the same within 60 days of receiving notice in writing addressed to the City at the addresses shown above, from MDT of such violation or breach of any term condition or article of this Agreement. If this Agreement is terminated, the improvements become the property of MDT, without reimbursement. MDT will maintain the Project as it sees fit and may remove it without City approval. MDT may seek compensation for removal of the Project from the City. 3. Hold Harmless & Indemnification 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 of the City, its agents, or sub- contractors, under this Agreement, except the negligence of MDT. 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. 4. Insurance 73 Page | 4 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. 2. Public Safety: a. If any repairs to the Project must be done to prevent a public hazard, the City will immediately protect the area from public access, contact MDT Bozeman Area Maintenance, and take corrective action to repair the hazard. b. If MDT incurs any costs as a result of a public emergency that necessitates action on MDT’s part concerning the maintenance or repair of the Project, MDT shall 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. 6. 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 74 Page | 5 rate will be charged at the rate agreed to by MDT and the Federal Highway Administration (FHWA). 7. Invoice will be sent to the appropriate party according to the Agreement: City of Bozeman P.O. Box 1230 Bozeman, MT 59771 8. Payments shall be made to: Montana Department of Transportation Attention: Collections 2701 Prospect Avenue PO Box 201001 Helena, MT 59620-1001 9. Choice of Law – This Agreement shall be governed by the laws of Montana 10. Venue – 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 on Indemnification. 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. 11. 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. 12. 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. 13. 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. MDT requires that any construction or maintenance 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 75 Page | 6 for Pedestrian Facilities in the Public Right-of-Way (2011 PROWAG), and MDT’s Detailed Drawings, 608 series. 14. Audit – The Legislative Auditor and the Legislative Fiscal Analyst may, without prior notice and during normal business hours, audit, at their own cost and expense, all records, reports, and other documents the City maintain in connection with this Agreement. 15. Access and Retention of Records – The City agrees to provide the State, Legislative Auditor, or their authorized agents access to any records necessary to determine compliance with this MOA (Mont. Code Ann. §18-1-118). 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 the Agreement taken by the State of Montana or a third party. 16. Highway Modifications – If MDT modifies or improves the Springhill Road/U-1219 or roadway facilities, the City will modify, upon reasonable notice at no expense to MDT, the Project accordingly. 17. 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 abandoned otherwise. Upon revocation or abandonment, the system facilities must be removed in compliance with this Agreement. 18. Utilities – The right of any private or public utility now lawfully occupying the right-of- way to operate and maintain utility facilities supersedes any right granted by this Agreement to the City. Copies of existing utility permits may be obtained from the MDT Bozeman Area Utility Agent. 19. Amendment and Modification – The Parties may modify or amend this Agreement only by a written Addendum signed by the Parties. The Addendum will control any conflict between the Agreement and Addendum shall control, unless prohibited by law. 20. 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. (Signature Pages to Follow) 76 Page | 7 IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by their duly authorized representative effective as of the date of final signature. SIGNATURES: MONTANA DEPARTMENT OF TRANSPORTATION Date: _________________________________ By: _____________________________________________________________ Montana Department of Transportation ________________________________________________ Printed name ________________________________________________ Title Approved for Legal Content: By: _____________________________________________________________ Approved for Civil Rights Content: By: _____________________________________________________________ CITY OF BOZEMAN Date: _________________________________ By: _____________________________________________________________ City of Bozeman ________________________________________________ Printed name 77 ATTACHMENT A MDT Nondiscrimination and Disability Accommodation Notice 78 ATTACHMENT B Plans 79 80